Administrative breakthrough by CBEC

EXPERT EYE

In regard to litigation, an administrative breakthrough has been achieved after a long time by the Central Board of Excise and Customs (CBEC). This is the decision to empower the Commissioners of Customs and Excise to appoint lawyers by themselves without waiting for permission from the law ministry[1].

This is one of the empowerment for which I tried for many years when I was Collector (now called Commissioner). I sponsored this issue several times for Collectors' conference and also emphasised the need for such empowerment before the CBEC and even the finance minister. We could not match the tax payers' ability to appoint the most effective lawyers.

We could not get special fee lawyers and senior counsels. The special fee lawyers would not usually appear for the Revenue Department because the appointment is made by the Law Ministry , usually creating enormous delay in paying their fees.

The payment system at that time was commonly referred to jocularly by the lawyers as: "Too little too late". We fought a losing battle in realising revenue which was held up due to too many injunctions from the Courts, which we were unable to vacate due to our inability to field effective lawyers at the right time. There were also SC judgements observing that bonds should not be taken in place of revenue since the government does not run on bonds.

The decision, which has come after a long tussle, is welcome because the litigations can be fought much more effectively when the power comes to the litigant (the Commissioner) to appoint a lawyer of his choice. The lawyer will also feel accountable to him as he gets the payment from him and is the appointing authority.

The Commissioner should now be able to quickly field a lawyer and get the argument put through before the Court. This should improve the finalisation of cases and realisation of arrear where due.

Unscrupulous evaders cannot get away by their ability to quickly appoint a lawyer of their choice and run away with an interim judgement in their favour since the same power is now with the Commissioner too. Now, the Commissioner is at a level playing field with the tax payer or evader in the Court.

However, there are three deficiencies in the empowerment.

The CBEC has not given the power to appoint special fee lawyers (who are legal luminaries and charge extra fees). This should have made the empowerment more effective.

The power has been given to the Chief Commissioner and not to the Commissioner which itself is not desirable because it is the Commissioner who is the litigant and not the Chief Commissioner. This once again leads to delay and dilution of responsibility. The Commissioner must be powerful because he is the executive authority. The Chief Commissioner is only a supervisory officer and has no executive power vis-à-vis the taxpayer.

The fees are miniscule compared to the earnings of these lawyers in the open market. Hardly any worthy lawyer will like to take up such cases.

The conclusion is that the move of the CBEC in the empowerment of the Commissioners is worthy of recognition and is in the right direction, but empowerment needs to be far more.

smukher2000@yahoo.com