 TIOL-DDT 2872
21 06 2016
Tuesday
BY an order dated 9th June 2016, the President of India was pleased to appoint 251 Senior/Junior Standing Counsels to handle litigation of Indirect Taxes before various High Courts and other fora. Some of them were appointed in 2011 or earlier and their term had ended on 14.10.2014. They were reappointed on 9th June 2016.
Within ten days on 18th June 2016, the CBEC by an Order rescinded the appointment of 111 of those counsels. These are counsels who were already on the panel as on 14.10.2014.
Can the CBEC rescind an order of appointment made by the President of India? These appointments have a long story behind them.
The Department had been assigned the powers by Ministry of Law & Justice to empanel Senior and Junior Standing Counsels to defend the Department at various High Courts, since 2008.
In this regard, Board issued a letter in F.No.278A/43/2007-dated 07.06.2011- Legal alongwith a D.O. letter dated 05.12.2007 of the then Member (L&J). The said D.O. letter specified the procedure of Appointment of Counsel and Renewal of their terms. This letter dated 05.12.2007 also specified the constitution of the Committees of Chief Commissioners for finalizing the nominations received from the Counsels for empanelment. Based on the workload of pendencies and real time work of litigation across various zones; it had been decided to earmark specific number of senior and Junior Standing Counsels to each of the High Courts falling under the jurisdiction of the respective zones.
Accordingly, the Board appointed Counsels on 15.10.2011 whose term ended on 14.10.2014.
In March 2014, the Board asked the Chief Commissioners to urgently initiate appointment of the panels of Standing Counsels for the period from October 2014 to October 2017.
As per the 2007 instructions, the appointment of the existing counsels can be renewed:
Proposals for renewal of terms of the Counsels should be submitted to the Board at least 3 months before the expiry of the existing term. The renewal of a term of a Counsel can be made for a period of three years if his performance is found to be satisfactory. Before making recommendation for renewal of appointment of the Counsel, the Chief Commissioner should necessarily make an evaluation of the performance of the Counsel during the preceding term and forward, it to the Board alongwith the proposal for renewal.
In June 2015, the Board realised that it was all wrong and the process had to be gone through again. The problem was:
Grievances have been expressed by some of the counsels to the effect that in case of fresh appointees interview is prescribed as mandatory requirement whereas in the case of extension of the term of the counsels on panel, the extension is granted on the basis of performance evaluation only without any interview. Thus the fresh applicants do not have fair chance of being empanelled in comparison to those already empanelled. In order to take care of the said grievance, Board has decided that interview shall be mandatory in all the cases whether for recommending an extension or fresh empanelment .
So, the Board asked the Chief Commissioners to undertake afresh the process of constitution of the panel for Senior/Junior Standing Counsels.
It took exactly a year for the Board to appoint 251 counsels on 9th June 2016. And on 18th June 2016, Board has rescinded the appointment of 111 ‘renewed' Counsels. Board worked on a Saturday to rescind the appointments.
CBEC Order in F.No.278A/21/2015-Legal., Dated: June 18, 2016
Litigation Management in CBEC- Appointment of Standing Counsels - VIP Reference?
THE qualifications for appointment as a Senior Standing Counsel:
1. He should be enrolled/registered as an advocate with the High Court
2. He should have a minimum experience of five years of handling preferably Customs and Central Excise and Service Tax matters before High Courts or Tribunals.
Experience in tax matters is not mandatory. In fact, many advocates with absolutely no idea as what Customs is all about have become Standing Counsels and represented the Government with aplomb in the High Courts. I asked a Standing Counsel how he was competent to defend the Government in Indirect Tax matters, when he had no experience or knowledge of the subject. He asked me, "When a person with absolutely no knowledge of tax matters can become a judge and decide taxation cases, what is wrong in my becoming a Standing Counsels?" Many Standing Counsels have indeed got promoted as High Court Judges.
The Standing Counsels have to defend the Revenue in high value cases and see the way they are selected and appointed. And now the Board has cancelled the appointment of 111 Counsels who all have at least three years' experience each. In these three years, they must have learnt some subject and so their appointment is not renewed and new lawyers are appointed.
VIP Reference: In its letter in F.NO.278A/21/2015.Legal, dated 18.06.2015, the Board informed the Chief Commissioners:
After the receipt of the recommendations made by you in response to the letter dated 7th March 2014, several VIP references have been received on the subject. These reference have been forwarded to you (concerned Chief Commissioners) from time to time. You may also take note of the said VIP reference and dispose them of while making the recommendations .
So, several VIPs have recommended candidates for appointment as Senior Counsels and the Board forwarded those references to the Chief Commissioners. The advocates who tried to use VIPs to procure the job of Standing Counsel should have been ab initio disqualified, but that seems to have been a factor in selection.
"What is wrong if a VIP recommends an eminently suitable candidate as Counsel?", you may ask. But in our country, recommendations are not made for eminently suitable candidates, but they are often made for totally worthless candidates.
Manual Signatures on digitally signed invoices for taking CENVAT credit
NOTIFICATION No. 18/2015-CE (NT) dated 06.07.2015 specified conditions, safeguards and procedures in relation to authentication of invoices by digital signatures.
Representations have been received from the trade requesting for clarification on whether a manufacturer who opts to authenticate invoices with digital signature can simultaneously also authenticate invoices by manual signature. The need for the trade to simultaneously use digital and manual signature arises because many of the customers of a manufacturer or service provider, who receive goods and services under cover of an invoice authenticated by a digital signature, may not have the requisite information Technology infrastructure to accept or receive such invoices electronically. In such situations they demand manually authenticated invoices from manufacturers or service providers who otherwise issue digitally signed invoices.
The Board proposes to issue a Circular to clarify that a manufacturer or a service provider who opts to issue invoices authenticated by digital signature may print a copy of such invoice and sign them manually, in terms of rule 11 of Central Excise Rules and Rule 4A and 4B of Service Tax Rules as the case may be, and forward the same to such customers who are unable to accept or receive the digitally signed invoices. Such invoices in effect would be authenticated by two signatures, digital signature as well as manual signature and would be in conformity with rule 11 of Central Excise Rules, 2002 or Rule 4A,4B and 4C of the Service Tax Rules,1994. Such invoices would also be a valid document to avail CENVAT credit.
Board requests feedback on the proposal from officers and Trade by 30th June, 2016.
Please also see
1. DDT 2635 - 07.07.2015
2. DDT 2636 - 08 07 2015
CBEC Letter in F.No.201/04/2016-CX.6., Dated: June 15 2016
No DGFT Licence for Import of Aircraft
GOVERNMENT has amended Policy condition 1 (e) of Chapter 88 of ITC (HS), 2012 - Schedule-1 (Import Policy) to provide for exemption from DGFT licence for persons who have been granted permission to operate air transport services by Ministry of Civil Aviation and the DGCA has granted permission to import aircraft on that basis.
DGFT Notification No. 10/2015-2020., Dated: June 20 2016
CPM Wants All Party Meeting on GST
YESTERDAY, we reported the CPM Finance Minister of Kerala supporting GST. The Central Committee of the Communist Party of India (Marxist) yesterday issued a Statement in New Delhi,
The Central Committee noted the obduracy of this Modi Government in refusing to call an all party meeting to build a consensus over the GST during the last two years. The GST as proposed today has certain weaknesses that need to be addressed and solutions to be found.
With the introduction of the GST, whatever little residual power remains with the state governments to raise resources will be lost. In situations when national disasters occur or to fund the welfare schemes to improve people's livelihood, state governments will now have to remain at the mercy of the central government for funds. Further, the mechanism to compensate the states that lose their revenue with the introduction of the GST will have to be properly addressed. A meeting of all the state finance ministers should be convened by the Prime Minister to discuss this issue thoroughly and come to a consensus.
The CPI(M) had given its note of dissent in the Select Committee of Parliament which contained our reservations which need to be properly addressed. The Central Committee reiterates that the PM immediately call an all party meeting to build a consensus on this issue.
GST - From each according to his convenience and to each according to his understanding!
International Day of Yoga
TODAY is International Day of Yoga. Let us hope our exercises with taxation is a Sthira Sukha Asanam.
Until Tomorrow with more DDT
Have a nice day.
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