TIOL-DDT 8 · the untouched capture
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<p align="left"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#0000CC" size="3">TIOL-DDT
8</font><br>
10 12 2004<br>
Friday</b></font></p>
<p align="center"><font color="#006633" size="2" face="Verdana, Arial, Helvetica, sans-serif">
<b>Why can't adjudication officers write their own orders?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<b>SOME</b> time back I called on a sitting Chief Justice of a High Court.
It was 7.30 pm when I went to his house. The Honourable Chief Justice had
come home from the court at 6.30 pm and when I went to meet him, he had already
freshened up and was doing home work - dictating to his stenographer.<br>
<br>
Judges - from the lowest courts to the Supreme Court - make their own
orders, Members of the Tribunal make their own orders but there is a distinguished
group of adjudicators who do not make their own orders - the quasi judicial
officers of the Customs and Central Excise department. These officers have
more facilities than judges and have <b>an army of assistants and that precisely
must be the reason, why they don't write their own orders.</b><br>
<br>
The story of order-making in the department is quite interesting. Let us start
at the beginning. An adjudication order by an Assistant Commissioner/Deputy
Commissioner is usually written by the Adjudication Superintendent or the
Technical Superintendent. Sometimes the boss is so very busy that these Superintendents
find it very difficult to get his signature on the file and the order. If
the Assistant Commissioner has not finished his quota of orders for a month,
this Superintendent is taken to task. Many of the Assistant Commissioners
don't even read the orders prepared by their Superintendents. They have
a quick glance at the 'order portion'. This order portion is
normally a oneline order confirming the demand. These adjudicating officers
are required to give 'speaking orders'. It would be a great favour
to this country if they can give at least 'reading orders'.<br>
<br>
To continue with our saga of adjudication orders, this order of 'The
Assistant Commissioner' is reviewed by the Commissioner. If the Assistant
Commissioner does not bother to write his own order, will a Commissioner who
has put in 25 years of 'service' write his own orders? Why should
he? There is another Supdt in the review section of the Commissionerate who
will write the review order. (The review farce a little later). The
case goes to Commissioner (Appeals) where yet another Supdt writes the appellate
order. In the case of an original order passed by Commissioner, the story
is similar. Commissioner being Commissioner has better facilities and more
Adjudication Superintendents who are expected to do a better job than divisional
superintendents. They are required to place relevant case law in files and
folders and flag them properly to give a good impression. The Commissioner's
orders are supposed to be reviewed by the Board, but in fact they are reviewed
by the Chief Commissioner, rather more accurately by a superintendent in
the Chief Commissioner's office. Even the Board is not above board in
this farce. A superintendent in the Chief Commissioner's office writes
the review order, an AC and an Additional Commissioner correct the spelling
and grammar mistakes and finally the file is put up to the Chief Commissioner
who also makes some spelling corrections and a 'draft review order'
is sent to the Board and in most cases the draft review order comes back with
a few commas changed and with the signature of the Board Member and that is
the Board review order which is the basis for an appeal to the Tribunal.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> Incidentally review means only review of orders against the Government. Orders
in favour of revenue are not even sent to the Board. Why this farce? If Board
members are too busy that they cannot review the orders, why can't this
job be delegated to the Chief Commissioners? In any case it is done by a Superintendent.
In Commissionerates also orders favourable to revenue are never reviewed.
The superintendent recommends that the order is in favour of revenue and so
may be accepted and it is invariably accepted. If favourable orders are not
to be reviewed, do you need a Commissioner, Chief Commissioner and Board Member
to do it? A Sepoy can as well do the job.<br>
<br>
If adjudication is all about one superintendent writing an order, another
superintendent reviewing it and yet another superintendent writing an appellate
order, do we need all this paraphernalia and so many adjudicating officers?
The fact that these orders are written by superintendents is so well accepted
that you can actually overhear in parties, conversation among adjudicating
officers, like, ' you are a lucky fellow, your adjudication superintendent
is very good; mine is stupid, he can't write a decent order!'
Even superintendents accept this fact. A review superintendent will never
blame an adjudicating authority for a bad order, he will blame his counterpart
superintendent for writing a shabby order. It is not that superintendents
are great order writers or anything remotely like that; this job used to be
done by Inspectors earlier. Now that inspectors are in short supply, the job
has been handed over to the superintendents.<br>
<br>
It is only Assistant Commissioner and above who are expected to pass adjudication
orders and they are supposed to be officers with sufficient seniority, maturity
and knowledge. Then why can't they write their own orders? If a High
Court Chief Justice or a Tribunal Member can write his orders why can't
these adjudicating authorities write their orders? </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> The culprit perhaps is the superintendent. If the Tribunal can manage without
a superintendent, the Commissioner or AC should as well. <br>
<br>
The department knows very well that an order written by a superintendent is
not valid in law, but they have a way to circumvent the law. When the proxy
order is put up to the boss for his signature, the superintendent makes a
remark, 'order as dictated, put up for signature' and the boss
has no qualms about signing the order that he had never dictated.<br>
<br>
It must be said here that not all adjudicating officers get their orders written
by their superintendents. There are many diligent officers who will
at least <b>read</b> their 'own' orders prepared by their subordinates.
I know a Commissioner who types his orders from beginning to end and he doesn't
even know typing. He would type long orders with two fingers with extracts
from the Show Cause Notice, the party's reply and then giving his findings.
He says by typing out the main points from the Show Cause Notice and
reply, he understands the case completely and then it is easy for him to decide.
But such commissioners are rare. There is another Commissioner whose orders
are rich in variety and each order is unique in style and content because
he distributes all his orders among all the superintendents in the Headquarters
and each superintendent is required to give him an order a week. His adjudication
targets are easily met. Then there was the classic case of a Commissioner
who passed two orders on the same day on the same issue but in respect of
two different parties. One was in favour of revenue and the other against.
These two orders were put up by two different superintendents each not knowing
what the other had done!<br>
<br>
<b>It scarcely lies in the mouth of the taxpayer who plays with fire to complain
of burnt fingers. - Lord Greene </b><br>
<br>
Until Tomorrow with more of DDT</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> Have a Nice Day </font> </p>
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