An issue that has come to focus is whether the representative of Revenue Department can concede some points (while arguing a case before a Tribunal or a Court) which he considers as not in favour of the Revenue. In a recent judgement (1) the Tribunal has passed stricture on the Departmental representative due to reason that he himself conceded two grounds and admitted that these two grounds for filing appeal on behalf of the Department was baseless. The stricture was, however, also for the reason that the officer was not well prepared. Here I am not writing about the justifiability of the stricture on the ground that he was not well prepared. I am only on the point whether a Revenue Officer can be chastised for going against the view of the Department for which the appeal was filed before the Tribunal. My view is not limited to the particular judgement here but is on the general issue.
My view is here that a Departmental representative should have sufficient leeway to argue a case as he considers fit. He cannot be reduced to just a parrot for merely repeating what has been written in the adjudication or in the appeal petition. If he finds it very difficult to justify what has been written as the ground for appeal, then can he be compelled to go against the correct position which he considers after due study? I have seen in many Supreme Court judgements that the judges have remarked that the counsel on behalf of Revenue has 'fairly conceded' some points. We have to think of the position of a lawyer arguing the case before a judge and against a lawyer on the side of the assessee. When he finds that the lawyer on the other side is making an argument on a particular point and the judge is asking him what his reply to that point is, he is in no position to justify a point if it is baseless, (even if it is written in the department's file). If he merely repeats what he is written in the file, he might get yet a different type of stricture from the judge for not applying his on mind.
It is very important from the point of view of ariving at the correct judicial decision that the lawyers on both sides state the position which they consider as correct at the time of the argument. If that is not done and the lawyer on either side keeps on harping on the same points which his client or his department has told them to do, then the correct decision can never come out. I can give an example regarding an assessee's lawyer. When I was adjudicating a case as a Principal Collector of Customs in Delhi, three expert opinions were placed before me by the assessee. When I pointed out to the lawyer that the wordings in all the three opinions were exactly the same, the lawyer fairly conceded that they could not be taken as reliable. He did not go on repeating the client's view. On the side of the departmental representative also one can say that very many wrong arguments are written in the adjudication appellate orders the proof of which is that at the appeal stage before the Tribunal or the Supreme Court, more than 80% of the departmental cases fall through. For example, it is very common to find in an adjudication order that the the adjudicator has taken the view that the assessee has not dischaged the burden of classifing the goods under a particular head. The legal position is quite clear that the burden is not on the assessee but on the department. In such a situation how can one expect that the departmental representative will go on blindly supporting the adjudication?
However, if the departmental representative does not study the matter but concedes a points without sufficient consideration, it is a lapse on his part. But if he has applied his mind property and comes to a conclusion that the departmental view is untenable, then he cannot be forced to repeat the same view blindly.
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(1) Commissioner of Central Excise, Bhopal vs. Burn Standard Co. Ltd. - 2010(253)ELT228(Tri. Del.)
