First dispose of the Stay petition; then you can think of the appeal! Board warns Commissioners (Appeals)
Now that there ARE too many Commissioners (Appeals), it hardly takes more than three months for an appeal to be decided. And normally the Commissioners (Appeals) don't decide the Stay Petitions as the main appeal itself is heard and decided within three months. So in reality nobody makes a pre deposit at this first appellate stage. Board must have realised the “loss of Revenue”, because of this superfast appellate mechanism. While many Netizens in this portal have demanded that there should not be any pre-deposit in this first appeal stage, Board wants the Commissioners (Appeals) to first decide on the Stay Application and then decide the Appeal. So, now for every appeal before the Commissioner (Appeals), there will be two hearings, one for stay and one for the main appeal. Consultants and Lawyers should send bouquets of the choicest flowers to the Board for giving them another opportunity to bill the client !.
CBEC, in a rare show of respect to judiciary has cited several judgements of the Supreme Court, High Courts and Tribunal to drive home the point that appeal should be heard only after the “stay' matter is decided – mainly on pre-deposit.
Is this another way to reach the target of Revenue Collection during the year end? In Revenue review meetings called for by Chief Commissioners, the Commissioners (Appeals) are also invited and their participation is sought. Are Commissioners (Appeals) agents for Revenue collections?
Board has directed the Chief Commissioners to issue suitable directions to the Commissioner (Appeals) to first dispose of the stay application filed by the party under section 35F of the Central Excise Act, 1944/Section 129E of the Customs Act, 1962 and only thereafter take up the proceedings in the appeal for decision. It may also be emphasized upon them that while granting stay specific findings should be given in the stay order leading to the conclusion that the deposit of duty or penalty would cause undue hardship to the appellant. At the same time while disposing of stay applications, Board's circular No. 396/29/ 98- CX dt 2.6.98 directing the Commissioner (Appeals) to dispose of the stay application within one month of its filing may be adhered to it may be brought to their notice that any deviation from the provisions of the statute as stated above shall be viewed very seriously.
Are they trying to intimidate the Commissioners (Appeals)? Please understand , this is India – where Democracy, Rule of Law and Judicial Independence are emotionally cherished ideals. Even in Gen. Musharaff 's Pakistan , the Judiciary tried to maintain its independence. It is certainly in bad taste for the Board to tell the Chief Commissioners that they should inform their Commissioners (Appeals) that any deviation will be viewed seriously . If you don't want your Commissioners (Appeals) to give judicial orders and if you want to treat them just like any other executive subordinate, why don't you think of abolishing the very institution? Let the civil courts have jurisdiction – at least they are not under the control of the Chief Commissioner and the Board!
This, certainly is, not the way to collect taxes – your job is to collect the correct taxes – not a penny more, not a penny less!
CBEC's F.No . 275/8/2008- CX.8A Dated : February 20, 2008