Thursday, July 24, 2014

SIMPLE TAXATION - NO THIRD PARTY INTERVENTION


SC feels slighted, snaps at Centre on tax tribunal

NEW DELHI: The Supreme Court on Wednesday reacted sharply to the Centre's stand that the purpose behind creation of National Tax Tribunal (NTT) was to associate domain experts in deciding taxation disputes as it was often felt that judges lacked expertise in specialized fields.
A five-judge constitution bench comprising Chief Justice R M Lodha and Justices J S Khehar, J Chelameswar, A K Sikri and R F Nariman wondered why the government rushed to the judges whenever they faced a problem.
"Judges may not be experts. But whenever there is a problem, they come to the judges by way of courts or commissions," the bench said before reserving its order on a petition filed by Madras Bar Association challenging the National Tax Tribunal Act.
The petitioner had alleged that these tribunals could not have been empowered to decide questions of law, which exclusively fell within the courts' domain. It said the government, by constituting NTTs and providing appeal against their orders directly to the Supreme Court, had denuded the jurisdiction of high courts.
The inclusion of chartered accountants and company secretaries on NTTs and allowing them to decide questions of law did not go down well with the apex court. "How can a CA or CS help determine the question of law involved in a taxation dispute," the bench asked.
Appearing for an association of chartered accountants and company secretaries, senior advocate K V Vishwanathan said the CA and CS courses involved study of taxation laws.
The bench said, "These days, Class VIII and IX students also study about Constitution. That does not mean they have knowledge of law. The taxation experts may be able to help a judicial member understand the complexities involved in a dispute but how will they determine a question of law?"
In a lighter vein it said, "Many clerks and stenographers after long association with lawyers know the provisions of law quite well. Can they be said to have knowledge enough to decide questions of law. A CA or a CS would be studying taxation law from the angle of tax purposes only and not for understanding the questions of law that would arise in a dispute."
Appearing for the petitioner, senior advocate Arvind Datar said NTT experimentation was dangerous for the judiciary as slowly, the government would take away expert subjects - disputes relating to company law, trademark and intellectual property - from the high court's jurisdiction by creating separate tribunals in the name of infusing experts into the dispute redressal mechanism.
NTT, instead of supplementing the judiciary, was supplanting the court's jurisdiction, Datar said.
The bench asked solicitor general Ranjit Kumar whether NTTs enjoyed any autonomy at all. "The NTT chairman does not even have power to set up benches. This power is vested with the central government. What is the autonomy we are talking about," it asked.

Friday, July 18, 2014

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FM’s CONFERENCE

FM’s CONFERENCE
Finance Minister Arun Jaitley will be holding the annual conference of Chief Commissioners and Director Generals of Customs, Central Excise & Service Tax, on 11th and 12th August at New Delhi.

The major focus during the two day annual conference would be on the accountability of assessing officers, non-filers monitoring system, data warehousing, search, seizure and surveys - study of effectiveness amongst others.

One of the technical sessions will be addressed by Supreme Court of India's senior advocate Shri. Harish Salve.

Are such conferences really helping the department in its day to day functioning?. How many orders passed by the Commissioner/ Additional Commissioner/ Joint Commissioner / Assistant Commissioner succeed legal scrutiny by the judiciary. Statistics speak loudly that the percentage of sustainability of the orders passed by these authorities in the judicial scrutiny is very low. The trend to confirm show cause notices without any legal basis continues rampantly in-spite of derogatory observations passed by the appellate authorities and Courts in many cases, which eventually leads to unproductive work. Such unproductive work only means waste of man hours and also waste of money. This trend is still continuing because there is no accountability on this count. 


Who detects the evasion case?
Who Investigates the evasion case?
Who prepares the Show cause notice?
Who assists in finilising the order in original?
Who prepares the appeal applications?
Who prepares the para wise comments to the writ petition?
Who attends and briefs the legal counsel?
Who attends commissioner appeal/tribunal / high court / supreme court?
Who initiates the recovery proceeding/attachment?

It is the Inspector and Superintendent. The quasi judicial authority plays a minimum role in the above mentioned work, as the entire work is entrusted on the Inspectors and Superintendents. Sometimes the Inspectors and Superintendents are called as pillars of the department. But has the department ever thought of imparting better training and educating these officers, who have all the while taken responsibility of doing such specialised work, which actually the respective quasi judicial authority is supposed to do. Has there been any effort to infuse the capability / capacity of these officers to explore and excel more. The truth is that the department is visible because of these two cadres but when it comes to their career prospects and infrastructure/ working conditions, it is pathetic and is only getting bad to worse. The Chief Commissioners conference is a ritual which happens once in a year but the issues which have been minuted in several conferences remain on paper only. Hope the present government extends its “Achchaa din Aayenge“ promise to this department also.

Can any DG / Chief Commissioner / Member / Chair person dare to present the ground reality of this department before the Hon’ble Finance Minister on the forthcoming Conference at New Delhi.

Can the so called pillars of the department hope for some concern by our Superiors, whom we have always seen as our Head of the Family.

Wednesday, July 16, 2014

NO DPC, NO PROMOTION WITHOUT REVISION OF SENIORITY LIST


Mr. Manoj Jain & other 28 Preventive Officers, Mumbai & Goa, filed OA No.692/2013 & 741/2013 respectively in Mumbai CAT for implementation of Parmar’s Case for revision of the seniority list. Mr. Manoj Jain of his own prepared the OA and argued his case in person. The Hon’ble CAT Mumbai has passed judgment and quashed prevailing Seniority List of Preventive Officers of Mumbai Customs and given the direction to redraft and finalize the Seniority List within 3 months’ time and not to hold any DPC for promotion till the Seniority List is revised in terms of present CAT Order.
CESA appreciate and salute the spirit and dynamic efforts of Mr Jain to fight the case single handedly and clarificatory  on DoPT OM dated 04.03.2014 which is mischievous one. CESA expect such type of dashing activists in our Cadre also.
Dear viewers said case is settled on 06.05.2014 i.e. prior to the disposal of contempt petition of non-implementation of N R Parmar case by the Hon’ble Apex Court. In the Hon’ble Apex Court, the OM dated 04.03.2014 was even ignored by the CBDT.
The relevant paras are reproduced below:
Para:38 During the course of arguments, it was contended by the learned Advocate for the respondents that the recent OM dated 04.03.2014 and particularly sub-clause(h) of clause 5 thereof referred to above, giving prospective effect to the judgment in Parmar’s case, has not been challenged by anybody so far nor DOPT has been made a party to this proceeding and as such, it is not open for this Tribunal to adjudicate upon the said clause. Accordingly to the learned Advocate, this clause will remain in the OM unless it is challenged and is set aside by this Tribunal or the Hon’ble High Court or the Hon’ble Supreme Court as ultra-vires. Para:39   We do not find any force in the above contention for the simple reason that the said clause in incorporated in contravention of the decision of the Hon’ble Supreme Court in Parmar’s case, since there is nothing in the judgment to indicate that it will have prospective application only, as stated earlier repeatedly. This being the position, the revised seniority list will have to be prepared by implementing the Parmar decision of the Hon’ble Apex Court in Parmar’s and ignoring the said clause (h) of clause 5 of OM dated 04.03.2014.
Para:40   With the above discussion, we conclude and proceed to pass the following operative order.
Para:41(a) Both the OA No.741/2013 & 692/2013 are partly allowed.
       (b) The impugned combined seniority list, Annexure A-1, dated 17.12.2012 and Annexure A-2 dated 01.04.2013 are hereby quashed and set aside.
       (c) Consequently, the respondents are directed to prepared a fresh draft seniority list of Inspectors (Preventive Officers)  of direct recruits and promote officers by strictly following the judgment rendered by the Hon’ble Supreme Court in Parmar’s case referred to above and by ignoring clause 5(h) of recent DOPT’s OM dated 04.03.2014 Annexure R-1.
      (d) The Respondents shall place the applicants and other similarly placed direct recruits at appropriate slots in the revised seniority list according to their recruitment years.
      (e) On preparation of the draft revised seniority list as above, the same be published inviting objections to it and after considering the same a single final / approved combined seniority list of Inspectors (Preventive Officers) of Bombay and Panaji, Goa Customs Office be prepared and issued.
      (f) The above exercise should be done within a period of three months from the date of receipt of the copy of this order.
      (g) It is needless to say that till the above exercise is done, it will not be appropriate to permit the respondents to hold and DPC on the basis of impugned seniority lists, which are now quashed and set aside, although, we are aware of the fact that large number of promotion posts are lying vacant and the process to fill up the same is held up, on account of the interim order passed by this Tribunal.”

Tuesday, July 15, 2014

CUP OF JOY & PLATE OF SORROW

STUDY GROUP
DG (HRD) has constituted another committee on 04.07.14 authorizing to examine the acute stagnation in Group “B” Executive Grade and to analyze the various options to redress the problem. Apex body is happy with these developments without questioning the proprietary of making such type of efforts, except killing time in the past.  Lakhs of rupees and several working hours have been spent in the name of Cadre Review and Cadre Restructuring.  What they have reviewed can anybody dare to ask or represent to President of India or Prime Minister what is going on in this department where 85% of work force have no future whereas for handful of officers in Group ‘A’ are in better position day by day at their cost.
One will certainly feel cheated  when one reads the recent letter dated 14.07.2014 placed on CBEC Web site.
On 14th July 2014, the CBEC authorities got fresh enlightenment (once again), and formed fresh committee to make analysis of various options to address the acute stagnation in the Group ‘B’ Cadre after getting the approval of Cadre restructuring. We, the Mumbai Association as Inspector since, 1989 onwards making rounds of correspondence and in our In house journal also at that time published several articles and also gave a write up of the problem since then several times to the Board, in all our correspondences.  The Administrative Reforms Committee, 1969 report was given on the basis of which the IRS is enjoying all the fruits but the cadre which was identified as stagnated in 1969 by the said Committee is even after 46 years problem is more aggravated and the stagnation has reached to its highest level without any solution.
In 1994, first time a study group on similar issue was formed and report given in 1997 when up-gradation was done this was brought to the knowledge of CBEC, again while in CR 2002, the issue was explain in depth, even to the Pay Commission this was brought to their notice.   Till date all the committee reports on this issue have been stacked in the cold storage and time and again same lolly pop is wagged before us.
In 2002, the terms of reference of CR was parity in promotion.  The same situation is prevalent till date. In 2002 CBEC issued several letters, formed group committees, now after doing everything, as per DGHRD reply to RTI application that CR delayed by 11 years.  For almost 3 years they held discussions with the stagnated cadre’s Associations about in-situ promotion after approving the CR, and now once again a fresh study Group.  What about the correspondence done so far?  What about the affidavit filed before court of law on this issue by the department? 
Normally, eagerness increases when the jingle sound of Cup/Bowl is heard which increases the appetite of expectation but when it is actually served on the platter, frustration anger creeps in, when nothing is actually served to even meet the least expected and we continue to move with empty plate before one committee to another committee, expecting miracle. 

Friday, July 11, 2014

HUE AND CRY ABOUT DOSSIERS



All Cadres of CBEC are eagerly awaiting the notification and implementation of CR so that they will taste the promotion, which is over due to them. All were expecting that it will be incorporated in the maiden budget speech of FM but it has not happened so.
RECTIFICATION OF AISL
Vide OM dated 02.07.2014, the placement of Officers of the Delhi Zone in AISL is rectified. CESA appreciates the efforts taken in this regard and congratulates one and all involved in this effort.  There are many Officers of other Zones who need proper placement in the AISL for which they are striving since long. They too require the same concern from the Board.  Both the AISLs i.e. 1993 to 1997 and 1998 to 2006, are full of flaws and need rectification to a large extent, so as to ensure that the eligible Officers are not deprived of the promotion and no injustice is caused to them.
DRAMA of DOSSIERS
In the various blogs, constantly the name of the various Officers’ is projected claiming that dossiers of these officers are pending and due to this, the DPC is being delayed. 4 Officers pertain to Mumbai Zone. The factual position of these 4 officers is as under:
    1) S U Kolwadkar (GEN)   : Goa Administration has already pointed out the mistake in name and has  also reported that the officer has expired
   2)  Amrut J Patel (SC)       :    Has taken VRS on 30.08.2002 from Mumbai-I Commissionerate     
   3) Kishor V. Keni (ST)      :    He is dismissed from Service
  4)  S.S.Bhatawadekar (GEN) : The officer has Expired.

The above factual position is already reported to the Board Office from time to time. It is the Board who is not updating their records pertaining to the Seniority list. It seems that such Blogs are placed only to malign the Mumbai unit of CESA.

HAT WITHOUT HEAD
Further, Board vide their letter issued in June 2014 has prepared a list of 21 officers in each batch of 1980 and 1981 batch for granting NFSG in the Grade of Principal Commissioner (HAG Scale) w.e.f. 07.08.2012, though such post was neither in existence nor defined in the Central Excise Act, 1944, during the relevant time. The amendment in Section 2(b) in the Central Excise Act, 1944, defining the ‘Central Excise Officer’ is proposed in the current budget. Notification of CR / creation of Post is far from reality. However, Board has already initiated the process to grant the NFSG w.e.f. 07.08.2012. How ridiculous?
Our Apex body is busy in garnering dossiers. The Apex body feels that by garnering the dossiers the promotion orders will be issued. DPC cannot be held unless the CR is notified and request is made by the Board to UPSC for a date for DPC. Office of UPSC will not act as a Cloak Room to store the dossiers. Board has engaged the Apex body in such miscellaneous activities so that their attention is diverted and they do not get time to look at the crucial matters, and eventually loose sight of Board extending its blessing to the Group A Cadre as well as Appraisers. The intention of Board is loud and clear – to permanently paralyse the Cadre of the Superintendent Central Excise in the department.
N R Parmar case:
The manner of fixation of the Seniority list is settled by the Apex Court in N R Parmar case in its order dated 27.11.2012 and also in the Contempt Petition.  The revision of Seniority List in CBDT is already over and accordingly promotions are in process. Shri Manoj Jain, the Preventive Officer of Mumbai Customs filed OA in Mumbai CAT and got an order dated 07.05.2014 for re-fixation of seniority by ignoring para-5(h) of DoPT OM dated 04.03.2014.
Can all the individuals approach the CAT and get similar orders. Then our Apex body will examine and will offer their legal opinion which will satisfy the members and overturn the judgement of Apex Court. How ridiculous?
The Officers who joined as Direct Inspector get only one promotion after serving for 20-24 years in one Cadre, whereas a LDC who joined the department got 5 promotions, a stenographer got 4 promotion, a direct AC got 5 promotions within a span of 20 -22 years (1980/1981 batch are in process for the promotion of Principal Commissioner), least to speak about examiner who has already swallowed 4 promotions in the same span of years. However, our Apex body instead of making efforts to give effect to the N R Parmar Judgement, which will benefit many officers, is rather finding excuses. How long?

MACPS:
The issue of MACPS and recovery thereon will be published in our forthcoming blogs.
DPC
There is no tomtom from Deputy Commissioner side as they do not have any blogs for them but they are doing their work silently and steadily. The DPC for the DC to JC is scheduled on 14th & 15th July, 2014 at Mumbai for the vacant posts. It may be noted that the present DPC is to exhaust the vacant posts so that these officers have an opportunity of another lift in the CR proposal for next grade. They are not busy with the Dossiers unlike our Apex body. We are silent on the vacant posts for which already DPC was held in Mumbai but the promotion orders are yet to be issued.