TIOL-DDT 2861
06 06 2016
Monday

THE appeals against order of the Commissioner and Commissioner (Appeals) are, as is well known, to be filed with the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).

There is a little known appellate channel in indirect tax matters - the Government as Revision Authority.

Under Section 35EE of the Central Excise Act, in respect of orders passed by Commissioner(A) relating to transit loss, rebate or export without payment of duty, the appeal lies to the Central Government i.e the Revision Authority.

So in case of a dispute on rebate under Central Excise, against an order of the COMMISSIONER(A), the appeal is with the Revision Authority.

In DDT 2339 24.04.2014, I asked a question,

But why do we need this parallel Revision Authority who is a Commissioner sitting in appeal over orders passed by another Commissioner, sometimes even senior to him? Can't we simply abolish this post and make all orders of the Commissioner(A) appealable to the Tribunal?

The Punjab and Haryana High Court recently solved this problem.

But first a little background:

Who is Government?

Under the scheme operative till 10.10.1982, the appeal against the orders of the Commissioners (then called Collectors), of Customs & Central Excise lay with the Central Board of Excise & Customs. Erstwhile Section 131 of the Customs Act, 1962 and Section 36 of the Central Excise & Salt Act, 1944, empowered the Central Government to revise the orders passed by the CBEC and appellate Collectors in exercise of their appellate jurisdiction.

At the Government level, while Secretary (Revenue) or Special Secretary disposed of the Revision Application against orders passed by the CBEC, and the Addl. Secretary or Joint Secretary disposed of the applications against the orders passed by the appellate Collectors of Customs & Central Excise and executive collector of Customs and Central Excise.

The Finance Act, 1980 introduced a new system by establishing an appellate Tribunal. The appellate jurisdiction of CBEC and Revisionary jurisdiction of the Central Government were abolished w.e.f. 11.10.1982, except a few residual transitional provisions and the Customs, Excise and Gold Appellate Tribunal (now CESTAT) was set up w.e.f. 11.10.1982. The Finance Act, 1984, revived the Revisionary powers of the Central Government in specified type of cases. On the Customs side, Section 129 DD read with proviso to Section 129(A) of the Act, empowered Central Government to revise the appellate orders passed by the Commissioner of Customs (Appeals). On Central Excise side, Section 35EE read with first proviso to sub-section (ii) of Section 35B of the Central Excise Act, 1944 gave review and revisionary powers to Central Government to revise the orders passed by the Commissioner of Central Excise (Appeals).

The Revision Application Unit of the Department of Revenue, Ministry of Finance, Government of India is dealing mainly with Revision Applications filed before Central Government in specified Customs and Central Excise matters under section 35 EE of Central Excise Act 1944 and section 129 DD of Customs Act 1962. The revision applications filed either by parties or department against the orders of Commissioners of Customs, Central Excise and Service Tax (Appeals) are considered and decided by Joint Secretary (RA).

The Joint Secretary and Commissioner (Appeals) are usually of the same rank. Sometimes, the Commissioner (Appeals) is even senior to the Joint Secretary (RA).

As of now, the appeals against the orders of the Commissioner (Appeals) lie to Revision Authority who is a Commissioner designated as Joint Secretary in the Revenue Department, in the following matters:

Central Excise

(a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse, or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty.

Customs

(d) any goods imported or exported as baggage;

(e) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;

(f) payment of drawback as provided in Chapter X, and the rules made thereunder:

The Tribunal has no jurisdiction to hear these cases.

All this has changed suddenly with a recent order of the P&H High Court. This appeal to the Revision Authority has come to an end.

Please also see: Remedy through Revision Application to Govt of India

Revision by Same Rank Officer not Permissible - HC

IN a recent order, the Punjab and Haryana High Court set aside two orders passed by the Revision Authority on the ground that the Commissioner (Appeals) and the Revision Authority were of the same rank. The High Court observed,

1. the impugned order was passed by the Joint Secretary to Government of India who was also Commissioner of Central Excise and Customs.

2. Thus, the order in appeal as well as revisionary order had been passed by the officers of the same rank which is not permissible as per law.

3. The impugned orders are set aside.

4. However, liberty is granted to the State to proceed afresh in accordance with law but without prejudice to the rights of the parties.

Now, what happens?

1. The High Court has given liberty to the Government to proceed afresh in accordance with law. What can the Government do? An order passed by the Commissioner (Appeals) has been confirmed by the Revision Authority. The Revision Authority's order has been set aside. That means the order of the Commissioner (Appeals) and that of the adjudicating authority merge with the order of the Revision Authority which has been set aside. Therefore, no order remains. Can the department now issue another Show Cause Notice?

2. What will happen to all the pending cases before the Revision Authority? As per the High Court order, he has no power to decide those cases. But if he doesn't pass an order, the Commissioner (Appeals) verdict becomes effective. So, should one get an order from the Revision Authority and then get it quashed by a High Court?

3. The High Court has held that revision by same rank officer is not permissible as per law, but the High Court has not elucidated as to which law makes it impermissible.

What can the Government do?

1. The easiest thing perhaps is to appeal to the Supreme Court, which option will keep all the pending cases with the Revision Authority in suspended animation for the next decade or so.

2. They can appoint a Chief Commissioner as the Revision Authority, so that the Revision Authority is higher in rank than the Commissioner (Appeals). But this is not easy – as such they do not have enough Chief Commissioners and which Chief Commissioner will like to work as a Revision Authority?

3. They can do away with the appeals to the Revision Authority? Why should the Government retain certain appellate powers when we have an effective Tribunal? Is it to retain a post or to ensure Revenue favour orders in these matters?

The High Court order came two months ago; the Government has not acted so far – hope they will soon.

Please see Breaking News for the High Court Order.

Collector's Order Smacks of Cruelty

WAS it one departmental authority confirming the order of another? Not always. I came across this order passed by a CBEC Member in 1981.

The findings of the Collector were merely based on presumptions and conjectures.

In the absence of any collateral and corroborative evidence, the demand of duty and penal action against the appellants was unwarranted.

The Board is also constrained to observe that in a case of this nature built up on unsupported statements, recorded after a long period of 1 to 2 years of the removal of the goods from the factory of the manufacturers, the imposition of massive penalty of Rs. 10 Lakhs, particularly, when the alleged evasion of differential duty was only about Rs. 30,000/ shows that the powers under Rule 173Q, were not used discriminately by the Collector, and smacks of cruelty.

Will Department close down its Audit wing? No more Audit by Departmental Officers or CAG

‘AUDIT' is a very misunderstood word. For a long time, I used to believe that audit is in the exclusive domain of a qualified auditor like a Chartered Accountant. Then I saw officers of the Central Excise Department who did not know the difference between credit and debit 'auditing' the accounts of mega corporate entities. But 'Audit' remains a terror word among assessees and the visit of the Audit party either from the Central Excise Department or from the CAG, is not exactly welcomed by the assessee.

In recent times, writs have been filed in High Courts challenging the power of the CAG to visit the premises of the assessees and the High Courts have given favourable orders. Within the mortal limits of modesty, I would claim to be a pioneer of sorts on this issue, as I am the first person to raise this issue in an article in ELT 13 years ago - Can/should CAG's Audit visit factories for Excise Audit? I had jocularly mentioned that an "Accountant General" is an accountant getting the salary of a General. The CAG was so angry that I almost lost my job.

Till 2007, there was actually no provision to audit Service Tax assessees at their premises. By Notification No. 45/2007, a new Rule 5A was inserted in the Service Tax Rules. Rule 5A(2) mandated the assessees to make available the records to the audit party deputed by the Commissioner or the CAG.

The Board in F. No. 137/26/2007-CX.4 dated 1.1.2008 clarified that these amendments have been made in the service tax rules to enable the duly authorised officers to carry out audit or scrutiny as may be necessary to safeguard the interest of revenue.

But does the Government have the power to frame such rules or the Board the power to issue such instructions?

The Delhi High Court in the case of   M/s Travelite (India) - 2014-TIOL-1304-HC-DEL-ST, held that any attempt to include provision for such a general audit through the back-door, such as through the impugned rule, is ultra-vires the rule making power conferred under Section 94(1). Rule 5A(2) was consequently struck down.

To legitimise Rule 5A(2), Section 94 was amended to insert a new clause (k), by Finance Act 2014 with effect from 06.08.2014. So, now the Rule making power includes the power to make rules for imposition, on persons liable to pay service tax, for the proper levy and collection of tax, of duty of furnishing information, keeping records and the manner in which such records shall be verified.

But will this clause in Section 94 validate an already existing Rule 5A(2)?

By Notification no. 23/2014-Service Tax dated 5th December, 2014, the Government inserted a new and revised Rule 5A(2) (DDT 2491), obviously in exercise of the new clause (k) of Section 94. So the Delhi High Court order is UNDONE. The Board almost says so in Circular No. 181/7/2014-Service Tax, Dated: December 10, 2014. Board clarifies, "the Hon'ble High Court of Delhi in the judgment dated 04.08.2014 in the case of M/s Travelite (India) - 2014-TIOL-1304-HC-DEL-ST had quashed rule 5A(2) of the Service Tax Rules, 1994 on the ground that the powers to conduct audit envisaged in the rule did not have appropriate statutory backing. This judgment can now be distinguished as a clear statutory backing for the rule now exists in section 94(2)(k) of the said Act."

Board directed the Departmental Officers to audit the Service Tax assessees as provided in the departmental instructions in this regard.

Simultaneously, Board also took up the matter in appeal before the Supreme Court and got the Travelite order stayed. 2014-TIOL-101-SC-ST-LB.

The issue is again before the Delhi High Court.

The High Court on Friday:-

1. declared Rule 5A(2) as amended in terms of Notification No. 23/2014-Service Tax dated 5th December 2014 of the Central Government, to the extent that it authorises the officers of the Service Tax Department, the audit party deputed by a Commissioner or the CAG to seek production of the documents mentioned therein on demand is ultra vires the FA and, therefore, struck it down to that extent;

2. held that the expression 'verify' in Section 94 (2) (k) of the FA cannot be construed as audit of the accounts of an Assessee and, therefore, Rule 5A(2) cannot be sustained with reference to Section 94(2)(k) of the FA.

3. declared the Circular No.  181/7/2014-ST  dated 10th December 2014 to be ultra vires the FA and struck it down as such.

Though this order pertains to Service Tax, it should be equally applicable to Central Excise. So, as of now, there should be no audit either by the Central Excise Officers or by the Officers of AG.

The Board must be busy preparing its appeal to the Supreme Court.

We carried the High Court order on Saturday. Please see 2016-TIOL-1061-HC-DEL-ST.

Please also see:

1. Should AG's Audit be allowed to visit factories and Premises of Service Tax Assessees? - (DDT 1298)

2. AG's Audit Visit to Factories and Premises of Assessees? - (DDT 1776)

3. CAG not authorised to visit factory of assessee in private sector

4. No Audit of Private Enterprises by AG's Audit - Calcutta High Court - (DDT 1951)

5. Karnataka High Court grants Interim Stay against CAG Audit of Service Tax Assessee - (DDT 2103)

6. Audit under Service Tax only by Chartered Accountants - not by officers of Department - High Court - (DDT 2283)

7. Even if Service Tax Audit cannot be done, there is no hurdle for Central Excise Audit - CBEC - (DDT 2453)

8. Service Tax - Audit by CAs - Solution worse than Problem - (DDT 2491)

9. Service Tax Audit - Cart Before Horse - (DDT 2494)

Until Tomorrow with more DDT

Have a nice day.

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