If there is a crime the culprits should be
punished. However, I have not come across any provision in the law that the
culprit should be tried thrice under the same law for the same violation. I
have not come across any provision in the law where without jurisdiction, the
authority can proceed with adjudication & prosecute the beneficiary in the
law. However, it can only happen in this great Indian Banana republic because
of the abuse of the position.
As you know this series pertains to rebate being
allowed in respect of exports effected. However, in this case we find that
there is mess beyond redemption created but in spite of raising voice against
the wrongs, nobody is bothered. Please see the state of affairs & you will
yourself come to a conclusion.
The
rebate sanctioning authority is not having jurisdiction to question the amount
of rebate once the same is authenticated by the relevant C. Ex. official in the
jurisdictional office. The CBEC Circular No. 510/06/2000-CX, dated 3-2-2000very
specifically states:
Quote:
3. If the rebate sanctioning authority has reasons
to believe that duty has been paid in excess than what should have been paid,
he shall inform, after granting the rebate, the jurisdictional Assistant/Deputy
Commissioner. The latter shall scrutinize the correctness of assessment and
take necessary action, wherever necessary. In fact, the triplicate copy of AR-4
is meant for this purpose, which are to be scrutinized by the Range officers
and then sent to rebate sanctioning authority with suitable endorsement.
Unquote:
This
effectively means that powers of adjudication in respect of the rebate amount
are restricted to the jurisdictional Excise authority & the Rebate
sanctioning authority does not have any say in it. Therefore
the whole proceeding in reducing the rebate is invalid ab initio because the CBEC
circular is binding on the department. The rebate sanctioning authority viz.
Astt. Commissioner (Rebate) lacks jurisdiction, therefore the Maritime
Commissioner cannot find fault with the order of the Rebate sanctioning
authority & direct him to file an appeal. All this was brought to the
notice of the Commissioner (Appeals), Mumbai-II & the Revision Authority,
GOI. Once again, the result was that the Commissioner (Appeals) simply ignored
the submission that the appeal is not maintainable on the grounds of
jurisdiction as the ab initio order is not legally valid in terms of the clear
cut provisions contained in the CBEC circular. Why the Commissioner/Chief
Commissioner/Commissioner (Appeals) ignore such explicit provisions of the CBEC
circular. If this is permitted then what is the sanctity of the written word of
the law & why it exists. The Commissioner/Chief Commissioner are high
ranking officials then why they do not rectify the wrongs instead of permitting
100 s of appeals to be filed by the exporters!
Not only this, the issue was raised with the Revisionary Authority of
the Government of India. However, like any other place, there is no justice but
the case is remanded to the original authority without taking the aspect of
jurisdiction into consideration. Reportedly, the Maritime Commissioner,
Raigad’s office has taken up the matter with the CBEC to resolve this imbroglio
but to no avail. When the CBEC could settle such the issue when it had arisen
in 2000 then why the CBEC is reluctant to do it at this point of time. What
stops the CBEC from stopping the misery & harassment! Thus right up to the
highest authority a farce & joke is inflicted on the exporters of this
country. Is it not disgusting & shameful. If the officials in field formation
can go by their own interpretation & flout the explicit procedures, which
are binding on them then where can the exporters go for relief? There are
several 100 cases & therefore it results in waste of time, energy &
effort of all concerned. Why the Commissioners or Chief Commissioners remain
oblivious or keep their eyes & ears shut & do nothing about it or if
they have done something then why the results are not there to see. The orders
in such cases, which is simply a waste of time, energy & effort of all
concerned, simply help the Commissioner (Appeals) to fulfil the quota of
hearings & issue of orders.
Please note that in several cases it is noticed
that the rebate is sanctioned in full by the Asstt. Dy. Commissioner of the
Maritime Commissioner’s office but the order is reviewed by the Commissioner
& the Asstt./Dy. Commissioner is directed to file appeal against his own
order. The moot point of law is that just because Commissioner has reviewed the
order, it cannot confer rights on that office to file appeal without
jurisdiction.
2. The second SCN in respect of the same ARE-1 is
issued by the Additional Commissioner in the office of the Maritime
Commissioner. The said SCN is issued on the basis of audit objection. Now, the
fact of the matter is that audit is of the department therefore just issuing a
SCN for the inefficiency of the departmental official & let the exporter
bear the brunt of that is highly deplorable. Therefore there is a second SCN
issued by the Maritime Commissioner’s office in itself. Once again, it is
pertinent to point out that the audit may be right in raising the issue but in
respect of the audit objection, the Maritime Commissioner’s office is duty
bound to bring the objection to the notice of the jurisdiction Excise authority
for appropriate action instead of issuing the SCN. The Maritime Commissioner’s
office cannot gain jurisdiction just because audit has taken objection.
We have already visited the story of 2 SCNs
issued, one by the rebate sanctioning authority & the one issued on the basis
of the audit objection. However, since the issue of jurisdiction was brought to
the notice of the Maritime Commissioner’s office, the Maritime Commissioner’s
office was compelled to bring the issue of difference in the FOB value of
exports in the S/B & the assessable value in the ARE-1 to the notice of the
range officials. Therefore, the third SCN is issued by the jurisdictional
excise authority in respect of the same ARE-1. In this SCN, the most intriguing
point I have come across is the fact that the SCN is normally issued after 1
year from the date of issue of the ARE-1 i.e. beyond the limitation period
therefore the SCN alleges overvaluation which could not be determined at the
time of the removal of goods to overcome the limitation period thus mis-declaration
is surreptitiously spoken about. Please note that the jurisdictional excise
authority acknowledges that overvaluation could not be determined at the time
of authentication of ARE-1 but then the moot point is that under these
circumstances, how could the assessee be aware of it & how can they be
punished. In respect of collusion, suppression of fact, mis-declaration, the
law & the judicial pronouncements are clear that the assessee needs to be
put to notice to the exact nature of the default so as to enable the assessee
to address the issue appropriately. However, everything goes for a toss.
The story is not about 3 SCN s but the SCN s
being in respect of the same ARE-1 containing different allegations &
proposing different punishment. In some SCN, I have come across cash rebate to
the extent of the FOB value & the rest being rebated through re-credit in
Cenvat credit account. In other cases, the rebate is restricted to the FOB
value & nothing done about the excess lying with the government i.e. same
is being treated as good as loss in the way the system functions. In some
cases, refund of the excess paid is demanded with interest. In some cases, not
only the refund with interest is demanded but even penalty is proposed as
penalty does not require mens rea. Thus the jungle rule prevails & not the
written word of the law. There are 100s of cases & there is no stoppage of
the idiocy. Just think of the plight of the exporter, for Rs. 2000 there are 3
notices to be replied. If this is the case, then even God cannot save this
country from the disasters as pronounced by the Supreme court judges.
The CBEC/Chief Commissioner/Commissioners cannot
say that they do not understand the implications of the circular issued by CBEC
debarring the rebate sanctioning authority from scrutinizing the correctness of
assessment but still the wrongs are rampantly committed & adjudicated right
up to the Revisionary Authority, GOI. There is something seriously wrong with
what’s going on & the exporter has to bear the brunt of the idiocy &
inefficiency of the department. Why that is no action is ever taken against the
wrong doers! Why the commissioner/Chef Commissioner be held responsible &
appropriate action taken. Why the exporters should be harassed & saddled with
multiple SCNs.
This is the eighth 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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