CBEC Member not happy with 10% success in CESTAT
The CBEC has written to the Chief Commissioners that the Member has shown displeasure that in 2007, the Department succeeded only in 10% of the appeals before CESTAT. The Member says it could be because
1. we are filing appeals in weak cases, or
2. we are not drafting our appeal properly
So the Board wants the Chief Commissioners to take necessary measures so that frivolous appeals or weak appeals are not filed and drafting of appeals can also be improved.
The Board is right – to a certain extent, but appeals are lost not only because of frivolous cases and bad drafting, but the Member has forgotten the important part of advocacy. Nobody thinks about strengthening the institution of Departmental Representatives. Many officers in the Department believe that the tribunals and Courts are against Revenue and are easily influenced by the evil assessee and his more evil advocate. It is not so. The fact is that many of the judges are pro revenue and given a chance they would like to protect the interests of Revenue, but the problem is that most of the Revenue cases are pathetically bad that even the outright pro-revenue judges cannot help. The few cases the Revenue wins are because of the strong commitment the judges have for the Nation and certainly not because of the strength in Revenue arguments.
The Revenue appeals in the highest judicial seats are big jokes. Tomorrow we are carrying two judgements of the Supreme Court where the Revenue took two diametrically opposite views on the same subject in the two different cases. Sometime back we had carried a case where the CE Department had appealed in the CESTAT against an order which was favourable to it.
Revenue appeals are on frivolous grounds, against issues already decided by the Supreme Court, badly drafted, more badly argued and never seriously pursued. The other day I was talking to an Assistant solicitor General of India and I told him he must be making quite a lot of money with all the silly appeals made by the Government. He told me that with the paltry fees they pay him, he cannot make both ends meet unless Revenue files more appeals. Recently the Revenue Boards have started a scheme of hiring retired senior officers to argue their cases before the Tribunals and High Courts. The Boards have not realised that arguing a case does not come naturally to a retired senior officer just because he is retired and he was senior. And not every retired senior officer is ready to take up Revenue's cases. A very senior retired officer told me that he felt insulted that the Private Secretary to the CC asked him if he would like to apply for the post of Government's Counsel. The CC concerned was an Assistant Commissioner when he was a Member! Another senior retired officer, who is frequently seen in the High Courts told me that the fee paid by the Department is an insult to any self respecting individual.
It is indeed difficult for Revenue to win an appeal. Maybe the reforms should start at the Board level – try to make your laws clear and ensure that your clarifications are not contradictory; then ensure that frivolous appeals are not filed - at least on issues which are already decided by the Supreme Court. If at all you have to file an appeal, ensure that it is properly handled – AND PLEASE HAVE SOME RESPECT FOR THE JUDICIARY.
You may also like to read Why and how does the Revenue lose cases?
And
If a case is worth fighting, is not it worth fighting well? TIOL-DDT 32
Board's F. No. F.No . 390/Misc/66/05- JC Dated : January 11, 2008