editorial - 1st aug elt issue

EXCISE LAW TIMES 1st August 2011 93

2011 ] CESTAT — A KINGDOM WITHOUT KING A5

CESTAT — A KINGDOM WITHOUT KING

Late night Official Tours at Goa by President CESTAT — Regular Excise DB abandoned for 3 days — Adjourning 131 Listed cases without dates — Presidents Roster Order renders Members without Court work — Gutkha cases loom large in CESTAT

In our last Editorial “CESTAT - Is it a Tribunal for Tours and Travels?”, the manner in which the Hon’ble President of CESTAT has been undertaking the official Tours to his home town Goa even while on leave were highlighted. These so-called official tours were undertaken on the pretext of meeting with the Commissioner of Customs and Cen-tral Excise, Goa to find accommodation for Circuit Bench at Goa, while the so-called meetings have not so far taken place during the last two years even though the President has undertaken dozens of Official Tours to Goa. The details of 50 protocol messages received by the Goa Airport and many protocol messages received by Delhi Airport and Mumbai Airport for Mr. Justice R.M.S. Khandeparkar were also given. The use of official car of the Goa Customs by Mr. Justice R.M.S. Khan-deparkar, even up to 9:50 p.m. and for various destinations, not related to the working of the CESTAT, were also highlighted. The said Editorial also contained information about unusual Tour Orders issued by the Hon’ble President for number of Hon’ble Members, dislodging the working of the Regular Benches of the CESTAT at Bangalore, Kolkata, Mumbai, Delhi & Chennai.

The information now provided by the Govt. of Goa about the so-called Official Tours of Mr. Justice R.M.S. Khandeparkar, is astonishing


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and exposes as to how the Govt. machinery and funds have been mis-used for personal purposes under the guise of Official Tours. Shri S. Chandran, Registrar CESTAT has facilitated the so-called official tours by sending questionable communications in large numbers, to the Govt. of Goa describing tours of Mr. Justice R.M.S. Khandeparkar as “Official Tours” as is evident from his following communication :

The Registrar, CESTAT in the first para of his above letter has described the visit of Mr. Justice R.M.S. Khandeparkar, President, CES-TAT to Goa from 20-12-2009 to 3-1-2010, as ‘Official Tour’, while the CESTAT has no Bench or office in Goa. As per our information there was no known official business for which President has been going on tour to Goa. The letter dated 30-3-2009, of the Finance Ministry, as re-ferred to in the Registrar’s above letter, is only for providing “State Guest” status to Mr. Justice R.M.S. Khandeparkar, while he is on offi-cial tour in connection with sitting of the Benches of the Tribunal. The para 3 of said letter in this respect reads as under :



“3. I shall, therefore, be grateful, if suitable instructions are is-sued to all concerned for extending all the facilities of a State Guest to Mr. Justice R.M.S. Khandeparkar, while on official tour”. [Emphasis supplied]

Almost all tours of Mr. Justice R.M.S. Khandeparkar to his home-town Goa, during the last two years, have been declared as “Offi-cial Tours” and the facilities have been obtained from the Commis-sioner of Customs, Goa and the Government of Goa on this pretext. In-formation provided by the Commissioner of Customs, Goa was pub-lished in our last Editorial and the information now provided by the Goa Government about the so called Official Tours of Mr. Justice R.M.S. Khandeparkar is so exhaustive and voluminous that it cannot be pub-lished. However, by way of example, a few of them are reproduced hereunder :-.

File Notings of Protocol Department, Government of Goa



A perusal of the above file notings of the Protocol Department of Goa Government shows that Mr. Justice R.M.S. Khandeparkar, Hon’ble President of CESTAT right from the year 2009 till June, 2011 has been taking facilities and courtesies as a ‘State Guest’ from the Government of Goa on the pretext that he was on “Official Tour” to Goa while no Official purpose has so far been established for such tours.

Bills for Vehicles used by Mr. R.M.S. Khandeparkar — Paid by Goa Govt.

The bills paid by the Goa Government for the vehicles used by Mr. Justice R.M.S. Khandeparkar as s ‘State Guest’ on Official Tour make very interesting revelations. A few of these bills are reproduced below :



The Credit Bill No. 2192, dated 29-1-2009 of Goa Tourist Develop-ment Corporation shows that for 22-1-2010, the vehicle was used by Mr. Justice R.M.S. Khandeparkar for 196 kms and on 24-1-2010, it was used for 150 kms. and interestingly, on 22-1-2010 and 23-1-2010 the President was on Official Tour till 8.30 p.m. Further, Night Halt charges for 2 nights were paid under this bill.

The Bill No. 2191 again shows that on 19-1-2010, the President travelled 185 kms in a day upto 11.00 p.m. On 20-1-2010, he traveled upto 10.00 p.m. and on 21-1-2010, upto 8.50 p.m. The Night Halt charges for 3 nights had been paid for the so called Official



Tour of Mr. Justice R.M.S. Khandeparkar, between 17-1-2010 to 21-1-2010.

The Bill No. 1594, dated 4-12-2009 also reveals that Mr. Justice R.M.S. Khandeparkar travelled 160 kms on 20-11-2009, 142 kms on 22-11-2009 and 116 kms. on 23-11-2009 and the vehicle was used upto 10.30 p.m. on 20-11-2009 and Night Halt charges for 4 nights were paid under this Bill.

Logbooks of vehicles used by Mr. Justice R.M.S. Khandeparkar at Goa

The copies of the logbook provided by the Protocol Department of the Goa Government for the vehicles used by Mr. Justice R.M.S. Khandeparkar during his “Official Tour” to Goa, demonstrate as to how the machinery of the Goa Government has been misused in the name of Official Tours. A few copies of such log-books are as given below :



A perusal of the above logbooks show that Hon’ble Mr. Justice R.M.S. Khandeparkar on 29-3-2010 and 30-3-2010 travelled 148 kms and 248 kms respectively while on 22-10-2010 and 23-10-2010, he



travelled 85 kms and 237 kms respectively. On 5-2-2011, 6-2-2011 and 7-2-2011, the Hon’ble President travelled 148 kms, 101 kms and 280 kms respectively. On 21-6-2011 and 22-6-2011, he travelled 36 kms and 299 kms respectively. The place of visit as indicated in column (8) of above logbooks does not reflect their any nexus with Official Work of the CESTAT. It is required to be seen how such extensive travels in the State of Goa by Mr. Justice R.M.S. Khandeparkar, Hon’ble President of the CESTAT can be justified as having been taken for official purposes.

The logbook for 22-10-2010 shows that, Mr. Justice R.M.S. Khandeparkar used Vehicles of Goa Government for Official purposes being ‘State Guest’ of Goa Government, whereas the Hon’ble President treating his said visit to Goa on 22-10-2010 as ‘personal’, and actually refunded with interest a sum of Rs. 7755/- earlier sanctioned as for Offi-cial Tour. Details of this refund was reported in our last Editorial at page A84 of E.L.T., 18th July 2011. This shows that even personal tours of Mr. Justice R.M.S. Khandeparkar are mis-declared as Official Tours to use Goa Government machinery. It does not stand any logic that as to how a particular tour of Mr. Justice R.M.S. Khandeparkar was treat-able as personal for Central Government purposes and ‘Official’ for the purposes of State Government.

Leave Details of Mr. Justice R.M.S. Khandeparkar stone-walled by CESTAT

The CESTAT administration is not willing to provide the actual dates on which the Hon’ble President had been on leave including LTC from 16-3-2009 till date. All our attempts with the CESTAT New Delhi to even have the dates on which the Hon’ble President was on leave have utterly failed. RTI application seeking leave details of Hon’ble President was initially allowed by the CPIO, CESTAT on 18-4-2011 (F.No. 06- 28/CESTAT/CPIO-ND/MS/2011), but the same CPIO, illegally and without any authority revised the said order by his letter dated 18-5-2011 and claimed exemption under Section 8(1)(j) from disclosure of leave details of Hon’ble President. On appeal, the First Appellate Au-thority under RTI, relying upon various decisions of CIC, directed for the disclosure of leave details of Mr. Justice R.M.S. Khandeparkar by 7-7-2011. But flouting the said order of the First Appellate Authority, the information has not so far been provided by CESTAT inspite of re-peated notices. The mala fide of the authorities is reflected from the fact that leave details in relation to other CESTAT personnel has been provided to us by the same CPIO.

CESTAT - A Kingdom without King

The absence of Mr. Justice R.M.S. Khandeparkar, Hon’ble Presi-dent of the CESTAT from the CESTAT Headquarters because of his fre-quent tours is adversely affecting not only the administration of the CE-STAT, but also its judicial working. The situation is further aggravated because of the extensive tours of the Hon’ble Members just interchang-ing their cities. A institution like CESTAT cannot be run on telephonic instructions given by the President sitting thousands of miles away,



since for taking prudent decisions, the knowledge about ground reali-ties plays a vital role. Without going back to the history, if we take the current month of July 2011, as an example, it reflects that in every field, instability in the CESTAT, is writ large.

Roster order issued by the Hon’ble President of CESTAT on 1-7-2011 for Bench sittings during July 2011, has been modified 15 times in less than a month, creating complete chaos in hearing of cases by CES-TAT Benches at Delhi. As stated earlier, 8 Hon’ble Members have been sent on tour from one city to another during July 2011 mostly to their hometowns.

As to how the tours of the Hon’ble President and Hon’ble Mem-bers has dislodged the working of Regular Benches of the CESTAT was brought to fore in our last Editorial. The frequent tours of the Presi-dent, CESTAT, has resulted in large pendency of Reserve Orders since March 2009 and a list of more than 100 Reserve Orders pending before the Bench of the President was published in E.L.T. of 25th April 2009 (page A133). Repeated request from the Members, seeking extension of time for pronouncement of Reserve Orders, is indicative of adverse ef-fect of tour culture on their working as is reflected from the following communication of Ms Archana Wadhwa, Member (Judicial) Ahmedabad.



A perusal of the above letter proves that the delay in pronounce-ment of the Reserve Orders is on account of the Hon’ble Member “Be-ing on tour to Delhi or on leave most of the times” Ms Archana Wadhwa was not posted at Delhi as she was earlier practicing as an Ad-vocate at CESTAT, Delhi and her repeated attempts to get transferred to Delhi were negated by the Ministry of Finance on the ground of her interest in this jurisdiction. Therefore her repeated tour to Delhi for most of the time is against the decision of Administration not to post her at Delhi, moreover Delhi is also her home town.

At CESTAT New Delhi, the position has been so worst that though during the week of 18-22 July, 2011, there were three outsta-tion Members on tour to Delhi, i.e. Shri M.V. Ravindran, Hon’ble Mem-ber (Judicial) from Bangalore, Dr. C. Satapathy, Hon’ble Member (Tech-nical) from Chennai and Mr. Ashok Jindal, Hon’ble Member (Judicial) from Mumbai, still, the Regular Excise Division Bench at Delhi did not hold any sitting for 3 days i.e. on 18th, 19th and 22nd July 2011. The Regular Excise Division Bench was first disbanded for 18-7-2011, ad-journing all 46 listed matters. The orders for disbanding the Bench came as late as at 1.30 p.m. on 18-7-2011. Again on 19-7-2011, the said Regular Excise Division Bench was disbanded adjourning all 47 listed matters. This ordeal continued even on 22-7-2011 when by oral instruc-tions, the Regular Excise Division Bench was disbanded in the morning of 22-7-2011, adjourning all 38 listed matters. But formal Roster Order No. 146/2011, dated 22-7-2011 cancelling the sitting of this Bench was issued around 4.00 p.m. on 22-7-2011, and it has not been put up on the CESTAT website till evening of 25-7-2011. Thus, in total, 131 listed cases were adjourned at the last moment, without any further date. This is resulting in utter inconvenience and harassment not only to the appellants, but to their Counsels and to the Departmental Representa-tives also. It is learnt that a strong protest has been lodged by the CDR for abrupt cancellation of Benches without prior and proper intimation.

The unfortunate “difference of opinion” matters at Ahmedabad, Chennai and Bangalore

The reason for all this chaos is that a Single Member Bench of Shri M.V. Ravindran, Hon’ble Member (Judicial), CESTAT was notified for 18-7-2011 and 19-7-2011 to hear a difference of opinion matter of April 2011 in the case of Kuber Tobacco Products involving Rs. 44 crores by drawing him from the Regular Excise Division Bench. This re-sulted in disbanding the Regular Excise Division Bench for these two days adjourning 93 listed matters, just for hearing a Single Member dif-ference of opinion matter which was not even listed for these two days.



This rendered the other Member of the Regular Excise Bench, Shri Mathew John, Member (T), without any court work for these two days. Thus, because of last minutes oral ad hoc orders of the Hon’ble Presi-dent, hearings in 93 listed matters were sacrificed for hearing just one unlisted difference of opinion matter by Single Member Bench of Shri M.V. Ravindran as this matter was not originally listed either for 18th or 19th July, 2011.

The most curious aspect of this matter is that large number of difference of opinion cases are pending in the CESTAT from the year 2008 and onwards. As per the available figures, there are 37 difference of opinion matters pending just at Ahmedabad Bench of the CESTAT from the year 2008 and onwards. Number of difference of opinion mat-ters are also pending at Chennai for long, and even at Bangalore Bench of the CESTAT, which is presided over by Shri M.V. Ravindran, Hon’ble Member (Judicial) himself, difference of opinion matter in Appeal No. ST/263/2009 is pending since 22-9-2010. But the treatment that has been given to the case of Kuber Tobacco Products, has not been ac-corded to the unfortunate difference of opinion matters of Ahmedabad, Chennai and Bangalore Benches of the CESTAT. This is highly discrimi-natory and should not be permitted merely because the difference of opinion in the case of Kuber Tobacco Products involved the Hon’ble President himself as a Member of Difference of Opinion Bench.

Members rendered without Court work

What is most surprising, is that on 22-7-2011, the Regular Ex-cise Division Bench did not hold any sitting inspite of both the Mem-bers, i.e. Shri M.V. Ravindran, Hon’ble Member (Judicial) and Shri Mathew John, Member (Technical) were available at CESTAT New Delhi. But all matters listed before them were adjourned by President’s Roster Order. Such waste of valuable time of Hon’ble Members, of liti-gant public and of Departmental Representatives should be avoided when the Tribunal is having all time high pendency of 64,000 appeals and more than 12,000 stay applications. The Roaster Order in question issued by President CESTAT gave no reasons whatsoever for cancelling the sitting of Excise Division Bench for 22-7-2011.

Gutkha Cases

There is another peculiarity in the month of July 2011. It is not understandable how many of the high profile evasion cases of gutkha companies have all of a sudden been listed during July 2011. The mat-ter has been brought to the kind notice of the Hon’ble Finance Minis-ter.

Conclusion

The need of the hour is to provide stability to the Regular Benches by checking the present tour culture in the CESTAT. Idly, the Hon'ble President should prefer to spent maximum time at the CESTAT Headquarter this will have ramifying effect on the administrative and



judicial working of the CESTAT because a Kingdom without the King never survives for long.

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editorial - 1st aug elt issue

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