F.No.390/Review/2/2012-JC

Government of India

Ministry of Finance

Department of Revenue

Central Board of Excise & Customs

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                New Delhi, 23rd November, 2012

INSTRUCTION

To,

1.     All Chief Commissioners and Directors General under the Central Board of Excise and Customs.

2.     Chief Commissioner (AR), Customs, Excise & Service Tax Appellate Tribunal.

3.     All Commissioners of Customs/Central Excise/Service Tax/All Commissioners (AR)/Departmental Representatives/Commissioner, Directorate of Legal Affairs.

4.     

Sub:-    Functioning of Review Committee of Commissioners Regarding

Your attention is invited to the statutory provisions by which committee of two Commissioners/ Chief Commissioners have been constituted to review the orders passed by the appellate Commissioners/ Commissioners as original adjudicating authority.

2.         Several appeals filed by the Department against the orders passed by the Commissioners (Appeal) have been dismissed recently, mostly on some technical ground. The orders passed by various judicial fora have commented on the mechanical and casual manner in which a quasi judicial function is being handled by the Commissioners constituting the committee. This is leading to huge loss of revenue in such cases without even the merits of the case being discussed.

3.         The Board has taken serious note of the lapses committed while reviewing orders of the Commissioner (Appeal) by the committee of Commissioners. Scrutiny of several judicial pronouncements on the subject reveals that there are three broad categories of defects noted in such orders which led to the dismissal of Departmental appeals. Defects in issuance of review cum authorization are seen to be a recurrent feature in most of the orders passed by the High Courts and the Tribunal.  In some cases appeals have been dismissed on account of absence of review- cum- authorization given by the Committee for filing appeal. This is an incurable legal infirmity and the law does not provide for curing this defect. Several orders have been dismissed by the Tribunal as well as the High Courts on the grounds such as signing of authorization by one Commissioner instead of both the Commissioners constituting the committee, undated authorization,   date appearing below the signature not indicating the year etc.  These technical defects have led to the conclusion being drawn by the Tribunal that authorization was not proper and valid.

4.         The second recurrent omission, noted in several orders, is lack of application of mind by the members of the committee showing any meaningful consideration of the issue being examined. This was the reason for dismissal of appeal by the Honble High Court of Delhi in the case of Kundalia Industries reported in 2012 (279) ELT 351 (Del).

5.         The third main reason for several dismissals of the appeals filed by the Department is that no meeting was held by the committee to show meeting of mind or ad idem. This has been the stated reason in several recent decision of Delhi Bench of the Tribunal.

6.         It is to be noted that the relevant statutory provision for review of the orders by the committee is made up of two parts or two stages. The first stage is formation of an opinion by the Commissioners that the order made by the appellate authority is not legal or proper, the second stage being filing of an appeal against order of appellate authority by directing any Officer authorised by the Committee in this behalf to file an appeal on behalf of the Commissioner. These two substantive legal requirements have to be kept in mind while reviewing the orders.

7.         Taking note of the judgments in the case of Kundalia Industries cited supra, Grand Prints Ltd reported in 2009(240) ELT 631(Tri-Del) and several such judgments of the Tribunal and the High Courts, the following precautions must be taken by the Commissioners constituting the committee while dealing with the review files-

(i)      The notings in the file and other relevant records should show meaningful consideration and application of mind by the committee.

(ii)      It should be ensured by the members of the committee that review cum authorization orders are passed in each case.

(iii)     Procedural infirmities in the review cum authorization viz. signature of one Commissioner, signature without date, name not mentioned below signature etc should be avoided.

(iv)     The Members of the Committee may make use of Video Conferencing for conducting meeting wherever feasible. 

8.         The above omissions are only indicative and not exhaustive. These have been observed in various judgments by the Tribunal and High Courts on more than one occasion.

9.         The above precautions may be adopted by the committee of Chief Commissioners also.

10.        It is, therefore, urged that due seriousness and diligence be attached to the quasi judicial function of review and the same should not an idle formality.

(Sunil K Sinha)

Director (JC)

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