Tribunal cracks whip on tax officials

Updated: Nov 13 2005, 05:30am hrs
That it is the court's function to interpret the law and dispense justice is too well known. In the last few years, however, the Supreme and the high courts in India have also espoused the citizen's right to challenge inaction of public authorities in matters concerning public interest and social welfare. The judicial pronouncements on petitions concerning social causes has added new dimension to the role of judiciary. Many still remember how hundreds of innocent pedestrians lost their lives in the recent past on the roads of Delhi, due to the zigzag senseless driving by the blue line bus drivers. It is only the court's order to drive the private buses strictly on the left of the road that sanity was restored. Of course, it is also true that some feel that the power of the executive has been eroded in practice by the judiciary. According to recent press report, addressing a National Legal Services' Authority function, the President of India is reported to have remarked: "Please do bear with me if I say the independence that is expected of this pillar (executive) is only in theory and mostly eroded in actual practice."

But it is not the courts alone that have taken recourse to enforce discipline and accountability which, strictly, the administrative authorities are expected to enforce. Now the quasi-judicial institutions, like the tribunals, also seem to take cudgels in their hands to whip the tax authorities to discharge their administrative functions and assigned duties ably. Thanks to the shear complexity of our tax laws and procedures, the taxpayers and tax authorities are constantly engaged in numerous disputes. While some disputes may involve outright evasion of tax, most call upon the departmental authorities, tribunals and the courts to adjudicate upon finer points of legal interpretation. Which is why the tax tribunals, like the Customs Excise and Service Tax Tribunal (CESTAT), are manned partly by technical members and partly by judicial members. Technical members are selected by a committee headed by a judge of the Supreme Court from among senior officers not below the rank of commissioner of Customs and Central excise. The same committee recommends appointment of judicial members who are experienced in the field of law. The blend of professional in the two disciplines is most suited to respond to formidable questions of facts and law.

In the CESTAT proceedings serving tax officials well versed in tax matters represent the department. In fact, typical of the bureaucratic hierarchy, they are designated as junior departmental representatives (JDR), senior departmental representatives (SDR) and chief departmental representative (CDR). It is expected that seniors handle cases involving complex issues and high stakes. On the face of it, it seems to be purely an administrative decision as to which case would be handled by what rank of DR.

In a recent case, however, a bench of the tribunal (CESTAT) directed for appearance by CDR only. In Volant Textiles Ltd v Commissioner, Pune, the tribunal reasoned: "Ld JDR, who has been recently posted in the Tribunal is not in a position to effectively argue the department's case, being new to the work. We understand that as a part of the cadre review, new posts at the level of commissioners, have been created and one officer in the rank of commissioner has been posted as JCDR for every bench of the tribunal. We have not, however, found the JCDR attached to the bench appearing in any single case or arguing any matter. Particularly, when cases involving high revenue such as this are listed for hearing or the appeal takes a totally new line of argument, it does not behove the senior officers in the grade of commissioners to allow such cases to be argued by very junior departmental representatives newly posted, instead of they themselves arguing such matters. The bench requires to be assisted by both sides, so that we can arrive at a proper decision. If the JCDRs are not to take any interest in their work and not argue cases in the tribunal, we do not see any reason for the government creating so many additional posts at the level of commissioners. We also direct the Jt JCDR to appear in cases of this type involving heavy stake and argue the matter before the bench in future."

Some feel that the tribunal's directive concerning essentially an administrative matter is uncommon. Some feel that the tribunal's function is to decide appeals and it does not lie within the powers of the tribunal to transgress into the domain of administrative decisions. They would like the tribunal to restrict its powers to pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or refer the case back to the authority which passed the decision or order for fresh adjudication. According to them, it is for the CBEC to ensure that cases are represented at appropriate level of DRs. Others argue that tribunal's directive emerges from the concern for qualitative defence in the larger public interest. Which side would you like to cast your vote

The author is ex-chief commissioner, Customs & Central Excise