In the hierarchical system followed in India the decision of the higher authority is to be honoured & implemented till that decision is reversed. However, in the case of rebate claims even this is being sent for a toss. The appellate authorities, which includes the Commissioner (Appeals) as well as The Revisionary Authority, Government of India have no way to overcome the binding precedent but then the way to get away with this is not to cognizance of the citation & deliver a decision. This is being done with impunity in spite of the fact that it is very clearly pointed out in the appeal documents that this mischief is resulting into the miscarriage of justice. Therefore not in the legal provisions contained in the law are derided but the settled issues by the judicial authorities are ignored which compels me to call India a Banana Republic.
The department has been citing the Hon’ble CESTAT decisions in case of M/s Gimatex Industries Ltd. Vs CCE Nagpur [2010(261)E.L.T.1026(Tri-Mumbai)] & Nagpur Transwell power Pt. Ltd. Vs CCE, Nagpur 2009 (243) ELT 459(T) saying that ‘assessment’ includes “ Self assessment” is not correct for the purpose of appeal under section 35 F of the CE Act. They are resorting to this because all categories of exporters as on date are allowed to remove the goods under Self Removal Procedures (SRP) therefore the department is trying to take a stand that the jurisdiction Excise authorities are not playing any role therefore there is no assessment carried out by the department. Since there is no assessment carried out by the department, the department is saying that there is no challenge to the value declared in the ARE-1/Invoice is necessary.
However that is not the truth of the matter in the case of the removal of goods for exports. The fact is that the documents are prepared & submitted to the range office & the relevant official examines the said documents & authenticates the triplicate copy of the ARE-1. Thus assessment is completed as acknowledged in the CBEC circular. Therefore the decisions of M/s Gimatex Industries Ltd. Vs CCE Nagpur [2010(261)E.L.T.1026(Tri-Mumbai)] & Nagpur Transwell power Pt. Ltd. Vs CCE, Nagpur 2009 (243) ELT 459(T) are distinguishable where no authentication of the ARE-1 by the Range officials was involved. The cited decisions are therefore not applicable to the case. Here in this regard, we invite reference to the case law 2010 (259) E.L.T. 369 (Bom.) in case of MAHARASHTRA CYLINDERS PVT. LTD. Versus CESTAT, MUMBAI wherein the hon’ble Mumbai High Court has ruled that Question of refund of duty paid not arises in self-assessment cases where goods are cleared under self removal procedure unless self assessment is varied - Supreme Court ruling in Priya Blue Industries case [2004 (172) E.L.T. 145 (S.C.)] holding validity of assessment cannot be considered in refund claim, applicable to self-assessment cases also - Self-assessment could be challenged by filing appeal - Impugned order holding refund claim as hit by time bar, sustainable. This effectively means that even if the department concedes only to the extent that there was self assessment carried out & the verification of the ARE-1 is simply a ritual or the Range officials are not required to perform the duties specified under the CBEC circular then too they were required to challenge the self assessment to overcome the limitation placed by the self assessment to vary the rebate amount stated in the ARE-1 duly certified by the Range officials. The judgement is squarely applicable to the rebate cases. Therefore without challenging the self assessment, there is no way that the assessment carried out in the ARE-1 can be varied & rebate amount reduced. This position prevails even after the issue is brought to the notice of all concerned. However, when law does not come to the rescue, cheating & abuse of authority is resorted to & decisions are giving by ignoring the submissions placed on record. This can only happen in India because there is absolutely no fear of whatsoever nature because the authorities are sure that nobody will pay any heed to the complaints of such misdemeanour & ever take action against them. Thus there is binding legal precedent but no implementation of it, thus reducing India to a banana republic.
This is the second part of the story. However, the story of the abuse of authority does not end here. Further lampooning of the system & abuse by the authorities will follow in the next write up. Till then Good bye.
rajiv.pec@gmail.com
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