The might of the bureaucracy to
trample the written word of the law in the name of interpretation of the law is
mind boggling & unfathomable. Even where there is no room for
interpretation, the officials in position are able to resort to outright
cheating & rest assured that nothing will ever happen to them though there
is a provision in the law in IPC-specifically 166 & /or 167 where such
offences of harassment by the bureaucracy are prosecutable & do not require
any permission for prosecution from any authority. I say so because the police
official in the department says that they do not understand the basics of the
law under which the prosecution is to be carried out conveniently forgetting
that they are not to deciding the prosecution but their only role is to lodge
the FIR & take the case to logical conclusion. The second stumbling block,
which is pointed out by them is that there are no prosecutions under IPC 166
&/or 167. Is it not strange or surprising that there are no prosecutions
for abuse of authority & harassment though this is a common problem in this
country & why a precedent is sought for launching a prosecution? I am aware
of one FOR lodged against the Chief Commissioner of customs & this
arguments being cited by the police department. The copy of the FIR was sent
right up to the Prime Minister’s office but to no avail. This only highlights
the disgusting & shameful state of affairs compelling this writer to
condone this nation as banana republic.
As you know this is a series in
relation to the rebate on exports. Please see how skewed can be the approach of
the officials in position to harass the beneficiaries but dare say anything can
happen to the officials because the law fully protects them even in respect of
the illegalities.
In case
of rebate claims, if you will analyze facts of the case then what the
department is saying is that the duty was not payable in the first place i.e.
excess amount was paid in the first instance than required under the law. Thus
this excess amount lying with the department needs to be refunded to us or
re-credited in the RG 23 Part II account. It cannot be the case of the
department that if the manufacturer has paid the excess amount then this can be
appropriated as duty illegally i.e. without the authority of law. In effect,
what we are saying is that if there was excess duty payment then we were
entitled to refund of it & the department cannot misappropriate the same. This
is a settled law-case law 2006 (206) E.L.T. 90 (Kar.) in case
of COMMISSIONER OF C. EX., BANGALORE-III Versus MOTOROLA INDIA PVT. LTD. It is
decided beyond doubt that the excess amount cannot be pocketed as duty but the
same is refundable to the assessee.
Not only
the above, as per Article 265 of the constitution, the Government cannot
collect taxes beyond the authority of law, which means that excess amounts
collected without the authority of the law have to be refunded to the tax
payer. This is the basic principle enshrined in the constitution itself &
cannot be disregarded. However, merrily, the officials in position restrict the
rebate in cash to the FOB value of exports & ignore the excess amount paid
to the government. Thereafter, this amount is as good as lost. I was surprised
to hear from the Commissioner (Appeals), Mumbai II during the personal hearing
that if I make a prayer to refund the amount by way of re-credit then he will
grant that favour. I fail to understand that where is the question of any
favour & whether a judicial authority can dole out a favour. On the other
hand this is the boundem duty in terms of the constitution of this country that
excess amounts collected without the authority of the law have to be refunded
to the tax payer but then the authorties do not like to honour the law but
would like the appellants to plead/pray for the kindness to be bestowed on them
even in respect of the legitimate rights. The salutation my lords is discarded
but they remain the lords.
This is the twelfth 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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