Justice at Departmental Levels - Can we expect any change?

[Seetharaman K C]

Every professional in the field of Taxation dreams of a system which addresses complaints efficiently. If we all professional take a serious look at the issues which we argue about at various departmental levels then we would not be surprised to discover that  most of our time is spent on cases or presenting arguments which have already been decided by higher levels of the judiciary. We present cases which have been decided by the Tribunals and yet we get negative orders.

The client receives a show cause notice and we prepare a reply, we are called for a hearing and the demand is invariably confirmed. It never happens that a show cause notice issued by a departmental official is reversed at the next stage by another departmental official. We all are aware that up to the Commissioner (Appeals) level demands raised by the departmental officials are rarely reversed and it is a fact that most decisions are pro-revenue.

We are told that there are several cases pending at different rungs of the judiciary; however no one is bothered about how the system works at the departmental level. If cases which have no material in them are disposed off at the grass root levels then unnecessary litigation at higher levels can be avoided.

Most of my professional colleagues would tend to agree that departmental officials at different levels take shelter under the pretext that they are supposed to only look at the factual position before taking decisions and are not authorized to interpret legal issues. Although a particular issue has been decided in favour of the assessee in several tribunal decisions the departmental officials still pass orders against the assessee claiming that only the Tribunal and the Courts have the powers to interpret provisions.

This actually creates a lot of unnecessary traffic in the upper judicial system most of which is created by indecision at the lower levels.

 To give an example of such a case which I have followed closely under the Service tax area, one can look at the number of tribunal and high court decisions which have been decided in favour of the assessee in the matter relating to the deduction with respect to value of materials consumed in the case of photography service, however with all these favourable decisions in favour of the assessee the department relentlessly continues to issue show cause notices against the assessee with the same demand, although they are fully aware that the matter would be struck off at the Tribunal level. In fact in this particular if one takes a look at the decisions given by the Tribunal in Central Studio & Colour Lab Versus Commissioner of Central Excise, Calicut 2010 -TMI - 78368 - CESTAT, BANGALORE and RAINBOW COMPUTER & COLOUR LAB. & ORS. Versus CCE, HYDERABAD-II 2008 -TMI - 30122 - CESTAT BANGLORE one would notice that the Tribunal has started giving one page orders for such cases where even the Tribunal seems to be asking the department why issues decided in favour of the assessee time and again are being raked up and in the Rainbow Computer & Colour Lab case the tribunal even goes to say that "the issue is no longer res integra" which means that this is not a new issue or an untouched matter.It also goes ahead to say that there is no merit in the impugned orders and sets aside the case.Even after this the department still continues to merrily issue show cause notices only to waste valuable time of all parties concerned.

With another budget in the anvil it is high time we all wonder if such a trend could be reversed where a lot of valuable time and money is not wasted by us professionals to prove what has already been proven and also by the departmental officials by demanding something which they know would be struck off  at a higher level of judiciary.