ADMINISTRATIVE ROLE OF THE ASSISTANT COMMISSIONER?

By

K.Vijay Kumar, M.A.,B.Ed., B.L.,

SUPERINTENDENT OF CENTRAL EXCISE

 

    

    Recently, the Northern Bench of the Hon'ble CEGAT while passing an order in favour of an appellant assessee held that "The reasons of the assessee was genuine and could have been allowed by the Assistant Collector in his administrative capacity. Instead of that he chose to assert his quasi-jurisdictional (sic) power turning a simple issue in a complicated one". [1998 (104) E.L.T. 19 (Tribunal )].

    The issue involved was that the assessee inadvertently took credit in RG 23C instead of RG 23A. The Assistant Commissioner ordered that there was no provision for transfer of credit from one account to another and in exercise of his quasi judicial authority; he passed an order, which the Tribunal quashed with the above observation.

    What is the administrative capacity of the Assistant Commissioner? He is a Central Excise Officer discharging certain statutory functions as per the Act, Rules, Notifications and instructions. As far as an assessee is concerned, all his actions are as per the law and all his orders affecting the assessee are in exercise of this quasi judicial powers. In this very case, how could the Assistant Commissioner use his administrative powers to transfer credit from one account to another, when there is no provision for it and had he disallowed that without using his quasi judicial authority, that order would have been quashed as one without following the principles of natural justice.

 

    "It is now too well established a law that whenever any order or action of the Government or authority, which is a State under Article 12 of the Constitution of India results in civil consequences, not only audi alteram partem rule is applicable, but also the order which is passed should contain reasons". -, observed the Hon'ble High Court of Andhra Pradesh in "ITC v. Dy. Chief Controller of Imports & Exports" – 1996(81) E.L.T. 34 (A.P.). Courts have consistently held that orders adverse to any person can not be passed without complying with the principles of natural justice and that non-speaking orders are not sustainable.

    In this situation, is there a way for the Assistant Commissioner other than exercising his quasi-judicial powers? (especially when he feels that there is no provision for transfer of credit).

EXCISE LAW TIMES – 01.05. 1999 – A 129