Government of India
Ministry of Finance
Department of Revenue
Central Board of excise and Customs
INSTRUCTION
New Delhi, Dated the 13th April, 2016
To
1. All the Principal Chief Commissioners/ Chief Commissioner of Customs/
Central Excise/ Service Tax
2. DG DRI/ DGCEI/ Audit/ Performance Management/ ST / GST
3. Commissioner Legal/ DLA/ Coordination
4. [email protected]; Webmaster, CBEC
Madam/ Sir,
Subject: Decision of the CESTAT Final Order No 40344/2016 in case of
Commissioner of Customs (Import) Vs Do Best Infoway, reg-
CESTAT Final Order No 40344/2016 dated 29th February 2016 in the case
of Commissioner of Customs (Import) Vs Do Best Infoway has commented
adversely as paras 9 to 13, the casual manner in which the matter was handled
by the Adjudicating Authority and the Commissioner (Appeal). CESTAT has in
para 14 asked CBEC to issue appropriate guidelines to the quasi judicial
authorities to discharge their duties publicly keeping in view the spirit of the
ratio laid down by Apex Court in the case of Gordhandas Bhanji [1952 AIR 16
SC]. The said paras are quoted as under:-
“9. Perusal of the content of the order sheet as above indicates that there
was noting on 22.12.2014 for fixation of hearing on 23.12.2014. But no such
hearing was granted on that date i.e. 23.12.2014, in absence of any recorded
action by the Commissioner (Appeal). A sheet showing grant of hearing on
24.12.2014 without any authentication by signature of Commissioner (Appeals)
appears on record. One day before the hearing fixed on 23.12.2014 record was
submitted to Commissioner (Appeals) by one ADO under his signature on the
order sheet. Fair copies of Order-in Appeal was put up to Commissioner
(Appeals) on 21.1.2015 for signature and approval of Commissioner (Appeals).
There is no signature of Commissioner (Appeals) on order sheet on that date.
- Above manner of maintenance of public record shows that an empty
formality was followed by the Commissioner (Appeals) for disposal of appeal.
The appeal order was signed by Commissioner (Appeals) undated and that
appears to have been issued on 28.1.2015 as per preamble to the impugned
order.
- Aforesaid factual matrix discloses that entire action of Commissioner
(Appeals) is contrary to law and there is no disposal of appeal as yet on his
record. If this is the manner an appellate authority acts, and his undated order
comes for judicial review, it is difficult to appreciate the very existence of
the
impugned order itself as to whether that has seen the light of the day.
- The jurisprudence that flows from the judgement of Apex Court in the
case of Gordhandas Bhanji 1952 AIR 16 SC that when a thing is required to be
done in the manner required by law and a public authority should pass public
order publicly and public orders made by public authorities as meant to have
public effect and are intended to effect the acting and conduct of those to
whom they are addressed and must be construed objectively with reference to
the language used in the order itself, it can be said that order of learned
Commissioner (Appeals) has no existence in law. Accordingly, the remarks
made by appellate Commissioner shall also have no legs to stand.
- Perusal of the adjudication order throws light that the adjudicating
authority summarily disposed of the proceeding without a speaking order.
Therefore, he is directed to issue appropriate notice to the importer clearly
bringing out allegations if any for the defence of the later and granting
reasonable opportunity of hearing shall pass a reasoned and speaking order
considering defence plea as well as evidence if any led by the importer.
- Before parting with this order, it is necessary to inform the Central Board
of Excise & Customs (CBE&C) that appropriate guideline may be issued to the
quasi Judicial Authorities in administrative justice system to discharge their
duties publicly keeping in view the spirit of the ratio laid down by Apex Court
in
the case of Gordhandas Bhanji (supra) and in accordance with law. Also the
manner how order sheet of public record shall be maintained by such authority
while they discharge public duty may be advised.”
2.0 The decision of the CESTAT as noted above points out severe lacunae in
the functioning of quasi judicial and appellate authorities in the department.
Poor maintenance of records interalia in the discharge of the functions of
these authorities has been a cause of concern. In this case CESTAT has found
lacunae not only in the orders passed by the Commissioner (Appeal), but has
also pointed to the deficiencies noted by them in performance of the assigned
public duties. From the perusal of note sheet reproduced in the order of the
CESTAT it is evident that the said Commissioner (Appeal) was performing his
assigned public functions in a pre-functory and casual manner.
3.0 As per (40) and (41) Chapter II of Central Secretariat Manual of Office
Procedure containing definitions in respect of various terms used in the said
manual, terms “note” and “noting portion” have been defined as follows:
“(40) ‘Note’—The remarks recorded on a case to facilitate its disposal; it
includes a summary of previous papers, a statement or an analysis of the
questions requiring decision, indication of the rules/precedent/resource
position, suggestions regarding the course of action and final orders passed
thereon.
(41) ‘Notes portion’ of a file—The portion containing notes or minutes
recorded on a case.”
4.0 Thus the file and notes on the file should not only be concise but should
also contain the details of minutes recorded in a case. Fixing/ Re-fixing of
personal hearing is a vital step towards the disposal of the case by the quasi
judicial / appellate authority. There can be no casual approach towards it. The
file notings should clearly indicate the same under the signature of the said authority who is fixing the dates for personal hearing. In case no personal
hearing is held on the date on which the personal hearing has been fixed, the
same should also be recorded on the file. In absence of all these details on the
file, the order passed by the said authority cannot be said to be passed
complying with laid down procedures and in accordance with the sound legal
principles. Every record leading to passing of any order by a quasi judicial
authority should be minuted on the case file which is also a record in the case.
The courts and appellate authority may at time call for the case records and
files to satisfy themselves with regards to the manner in which proceedings
have been conducted by the public authority.
5.0 It is a settled principle in law, that:
- Justice has not only to be done but seem to have been done in the
performance of quasi judicial functions.
- If the law prescribes a manner of performance of a function, then that
manner is only manner for performance of the same and every other manner
is mandatorily barred by law.
- Thus if the quasi judicial authority has to grant the personal hearing on
the date and time decided by him while deciding the case, then that authority
alone can grant the said personal hearing on that date and time. The record
of such hearing should be essential part of the record of the case under the
signature of the said authority in person.
- The quasi judicial orders subject to judicial review have to be necessarily
a speaking orders recording every fact and reason leading to the final decision
in the matter. Non speaking orders or the orders passed without recording the
submissions and reasons for passing the final order is non est in law.
6.0 You are requested to bring these instructions to the notice of all the
officers functioning in your jurisdiction. You should also cause sample
verification of records of the adjudication and appellate proceedings in your
jurisdiction from time to time to time to ensure compliance with these
instructions.
7.0 This issues with the approval of the competent authority.
(Rohit Singhal)
Deputy Secretary (Judicial Cell)
F. No. 390/CESTAT/24/2016-JC
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