TIOL-DDT 2773
27 01 2016
Wednesday

AS per Rule 10 of the CESTAT Members (Recruitment and Conditions of Service) Rules, 1987, the Central Government shall appoint a person who is or has been a judge of a High Court or one of the Members of the Appellate Tribunal to be the President. The Supreme Court in case of R K Jain Vs UOI - 2002-TIOL-405-SC-CEGAT-LB observed "to instil the confidence of the litigating public in the CEGAT, the Government must make a sincere effort to appoint a sitting Judge of the High Court as a President of the CEGAT in consultation of the Chief Justice of India and if a sitting Judge is not available the choice must fall on a retired Judge as far as possible." Accordingly, retired judges of High Court are being appointed as Presidents.

Recently, the Government has notified separate Rules for recruitment of the President, CESTAT, in exercise of the powers conferred by sub-section (3) of section 129, read with sub-section (1) of section 156 of the Customs Act, 1962. These Rules are called "The Customs, Excise & Service Tax Appellate Tribunal (Procedure for Appointment as President) Rules, 2016". As per the new Rules, the selection of President shall be through a Committee. As per Rule 3,

3. Method of recruitment. - (1) Vacancy shall be circulated through open advertisement and applicants shall be asked to forward complete application through Registrars of High Court or Customs, Excise & Service Tax Appellate Tribunal, as the case may be.

(2) For the purpose of appointment to the post of President, there shall be a Selection Committee consisting of the following Members, namely:-

(a) the Chief Justice of India or a Judge of the Supreme Court of India as nominated by the Chief Justice of India as Chairman;

(b) the Secretary to the Government of India, in the Ministry of Finance, Department of Revenue;

(c) the Secretary to the Government of India, in the Ministry of Law & Justice, Department of Legal Affairs;

(d) the Secretary to the Government of India, in the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training.

(3) Any three members of the Selection Committee including the Chairman shall form a quorum for the meeting of the committee.

(4) The Selection Committee may devise its own procedure for selection and appointment of the President.

(5) The Selection Committee shall recommend a panel of three names in order of priority for appointment of President .

President Goda Raghu Ram will retire in March 2016 and perhaps the new President will be appointed under the above Rules. As it is not desirable to leave the CESTAT without a President, the process should begin immediately.

Identical Rules have also been notified for Appointment of Chairman and Vice Chairman of Authority of Advance Rulings under sub-section 3 of Section 245-O read with sub-section (1), clause (p) of sub-section (2) of Section 295 of the Income Tax Act, 1961.

Can a Tribunal Member be selected as President, CESTAT? Please see: Appointment of CESTAT President: A Forgotten Alternative

F. No. A. 50050/20/2015-Ad.1C (CESTAT) & F. No. Q.23016/6/2015-Ad.IC(AAR)] dated January 21, 2016

Perils of limited power to condone delay

WE received this mail from Sri Sanjay Singhal, an Advocate, in response to DDT 2772:

Please refer to your column on TIOL. An exporter had obtained AIR Drawback amounting to about Rs. 3 Lakhs. Upon receipt of SCN for submission of BRC, relevant BRCs were submitted to the department. However, as the departmental officers misplaced the documents, the lower authority confirmed the demand. Subsequently, the exporter filed the appeal after 128 days seeking condonation of delay. When the Commissioner called for the department's report, it was admitted that the exporter had indeed submitted the BRCs and the same have been traced out. However, since the appeal was barred by limitation, the Commissioner dismissed the Appeal. Upon further appeal to RA, the second appeal was also dismissed on grounds of SC judgment in case of Singh Enterprises . Now the exporter has to shell out the amount for no fault of his as he has failed to file Writ against RA Order. 

As rightly pointed out by you, such small scale exporters/manufacturers need help by allowing Commissioner Appeals to condone delay in deserving cases.

While we thank the learned advocate for his valuable piece of information, we hope that these instances will ring the right bells in the powers that be, as to how such small mercies on the part of the revenue will go a long way in ensuring "ease of doing business in India" a reality. It is budget time and something needs to be done to address this issue.

Import of Natural Rubber - Not allowed under Advance Authorisations

DGFT has amended the FTP 2015-20 by inserting a sub-para (vi) in para 4.18 as under:

(vi) Import of Natural Rubber will not be allowed during the period 21st January 2016 to 31st March 2016 under Advance Authorisations to be issued or revalidated on or after 21st January, 2016.

DGFT Notification No 33/2015-20 dated January 21, 2016  

Import of Caustic soda - Midterm review initiated

ALKALI Manufacturers Association of India, New Delhi, an association of producers of Caustic Soda, has sought a midterm review of the anti-dumping duties in force on the imports of Caustic Soda originating in or exported from Iran in accordance with section 9A of the Customs Tariff Act 1975 read with Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. They have inter alia claimed that the circumstances that were prevalent during the period of investigation of the original investigation have changed significantly leading to a situation where the existing anti-dumping duties against Iran need to be reviewed.

The Authority, given the changes in the cost and price structure and the resultant injury aspects in view, felt that it is appropriate to carry out a comprehensive review of the duty in force against all the countries on which the duties are in force i.e., Iran, Saudi Arabia and USA and accordingly issued Notification, initiating Midterm review.

F. No. 15/19/2015-DGAD dated January 22, 2016

Tribunals are here to stay as they play an important role in sphere of adjudication of disputes - says Law Minister

IN his valedictory address at the Platinum Jubilee Celebrations of Income Tax Appellate Tribunal (ITAT), Union Finance Minister Shri Arun Jaitley emphasized the need to have simpler tax regime for the hassle free working. He said Laws must be simple to avoid the possibility of excessive litigation even if you have a large number of population and assessees. He said the tax tribunal is constituted by experts from two different branches - one having a judicially trained mind which is keen to interpret the law and the other having experience in taxation.

Yes Sir. Laws must be simple. But your officers make them complex. Can anyone understand this condition stipulated in an Exemption Notification?

"If the said excisable goods are manufactured from inputs or capital goods on which appropriate duty of excise leviable under the First Schedule to the Excise Tariff Act or additional duty of customs under section 3 of the Customs Tariff Act, 1975 (51 of 1975) has been paid and no credit of such excise duty or additional duty of customs on inputs or capital goods has been taken by the manufacturer of such goods (and not the buyer of such goods) under rule 3 or rule 13 of the CENVAT Credit Rules, 2004" .

In his address Union Law & Justice Minister Shri D.V Sadananda Gowda said the concept of Tribunals has been borrowed from the French system of ‘The Droit Administratif, which referred to a system of administrative courts that ran parallel to the civil courts. The intention behind this system was to ease the civil courts from administrative matters while laying separate standards for administrative disputes.

He said the Tribunals are here to stay as they play an important role in the sphere of the adjudication of disputes. Tribunals function differently from courts, from the manner of appointment to the procedure followed. The Tribunals do not have to follow the uniform procedure as laid down under the Civil Procedure Code and under the Indian Evidence Act but they have to follow the principles of natural justice. Nevertheless, they seek to achieve the same objective as that of the courts i.e. - to impart and deliver Justice. 

Until Tomorrow with more DDT

Have a nice day.

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