In recent past, in quite a few verdicts of the CESTAT and the superior courts, the department of the Customs and Central Excise has faced either the strictures or the cost or both. On a careful scrutiny of facts involved in those verdicts, it can be discerned that the department in those cases had preferred to act not rationally and legally, but whimsically. I am of a considered view, and so may you be, that whims can do good to none. To bring home this point, I recall a case relating to Delhi Commissionerate and reported on 2010 (255) ELT 324 (Del), wherein the High Court of Delhi passed strictures against and also imposed the cost on the department.
The facts of that case, as given in the judgment, can precisely be summed up as following:
The petitioner before the High Court in above case (herein after referred to as the petitioner) had filed 61 rebate claims against the exports made by him. Those claims were not being decided by the Assistant Commissioner despite an order dated 27.12.2006 having been passed by the Government of India (J.S.-R.A.) in favour of the petitioner. Because of such whimsical approach of the Assistant Commissioner, the petitioner sought a meeting with the jurisdictional Commissioner on 3.8.2007; and thereafter, on the basis of the assurance given by the Commissioner during the meeting, he addressed a letter dated 7.8.2007 to the Commissioner undertaking therein that he would forgo the interest on the amounts of his claims if all of his rebate claims were sanctioned and amounts thereof released before 17.8.2007. After such developments, the Assistant
Commissioner sanctioned 16 of his 61 claims on 16.8.2007 and the remaining on 24.8.2007.
However, the payments of all the claims were released only after 17.8.2007 and even then the interest was disallowed.
The facts given above make it apparent that the petitioner had undertaken to forgo the interest in his letter dated 7.8.2007 subject to a condition, and the condition specified by the petitioner was not met with by the department or the Assistant commissioner; and as such, that letter had become unenforceable. Therefore, the petitioner felt that he was not bound by his letter dated 7.8.2007; and for that reason, he assailed the rebate sanctioning orders in appeal to claim the interest which had become due in terms of statutory provisions. The Commissioner (Appeals) allowed his appeals vide the Order-in-Appeal dated 24.6.2008, and ordered that the due interest be paid to the petitioner.
The department allowed the Order-in-Appeal dated 24.6.2008 to attain finality; and thus, the department or the Assistant Commissioner had no option but to implement that Order-in-Appeal.
The Assistant Commissioner, however, preferred to go not by the law but by the fancy of the wisdom of his whims; and embarked upon a legal misadventure by adjudicating the matter afresh vide his Order-in-Original dated 30.3.2009 to disallow the statutorily due interest on emphatically relying upon the undertaking given by the petitioner in his letter dated 7.8.2007.
Such fresh adjudication was apparently a legal misadventure for the following three reasons:
(a) In terms of settled law, the Assistant Commissioner was legally bound to implement
the order of the Commissioner (Appeals) as that order had attained the finality;
(b) the settled law does not permit the fresh adjudication of a matter which has attained the finality;
and (c) the Assistant Commissioner is a pretty senior officer, and therefore, was expected to understand that he cannot seek to enforce the letter dated 7.8.2007 of the petitioner since the undertaking given therein was conditional and the given condition was not met with by the department; and if at all the Assistant Commissioner, for any reasons, was persisting in a belief that the interest was not payable in the matter,
he should have gone in appeal against the Order-in-Appeal dated 24.6.2008 before allowing the same to become final.
The petitioner, aggrieved by the Order-in-Original dated 30.3.2009, approached the High Court through a Writ Petition; and the High Court took a rational and legally correct view to hold that the undertaking given by the petitioner in his letter dated 7.8.2007 was conditional and the condition thereof was not met with by the department; and therefore, that undertaking was not enforceable. The High Court not only quashed the Order-in-Original dated 30.3.2009 but also ordered for the payment of the due interest and imposed a cost of Rs. 10,000/- on the department, besides passing the strictures against the department.
The facts narrated above make it copiously clear that the department had acted whimsically not once but at every stage in the matter.
First of all, it demonstrated a contempt to the J.S.- R.A. and exercised its whims by not deciding the claims for almost a period of eight months; then it used its whims by ignoring the statutory provisions relating to the payment of interest on delayed refunds; and thereafter, it showed a contempt to the Commissioner (Appeals) by not implementing his order which had become final, and proceeded whimsically to perform an unlawful act by embarking upon to exercise an extra quasi-judicial power to undertake the fresh adjudication of the matter which had already attained a finality.
I do not know the reasons for which the department had resorted to such actions, but I do form an estimate that this might have been done by the concerned officer/s in an endeavour to conceal his/their own non-performance of duty and to demonstrate an insincere loyalty to the department to make it appear that every effort was being made to enrich the exchequer.
In my views, such an action can only be resorted to by an officer who is either unaware of or has forgotten the fact that his post is a creation of a statute, and that he is there only for the furtherance of the cause of that statute which has created his post. Let it be as it was: the consequences do show that the whims could do good to none. The department ended up not only in paying the extra interest and the avoidable costs, but also came to have one more stigma on the face of its image; and petitioner had to pursue avoidable litigation at the cost of his business which also suffered due to the paucity of funds during the delayed period.
It is not that all officers of the department act alike. There are also officers, who always go by the law and do the things in a righteous manner undeterred by the sufferings which they might face in short run. But one thing is certain that a lawful and righteous act always stands by the doer and rescues him/her in the hour of need in long run. I will discuss this aspect when I get an opportunity to meet you next.