In a recent case, the Delhi High Court expressed its concern over the practice of issuing copy of Draft Orders as Certified Copies. On behalf of the Department, it was argued that it is a practice since long time followed by the Department. While disposing the petition filed by the assessee the Court held that the Certified Order produced by the petitioner cannot be held as a valid one since it has no legal status. Therefore, it was held that “the revision application has to be treated as still pending adjudication and disposal.”
The petitioner in the instant case, challenged the Order dated 20th August 2002, passed by the Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, rejecting the revision application filed by the petitioner under Section 129DD of the Customs Act, 1962 against an order in appeal dated 19th January 2001 passed by the Commissioner of Customs (Appeals), New Delhi. The ground of challenge was that the impugned order was not signed by the Joint Secretary.
On verification of documents, the petitioners produced the Order documents in which it was found that it contains a ‘Draft Order’ signed by Mr. Dinesh Kakkar, the JS in question at the relevant time. However, there is no date below the signature of Mr. Kakkar. The date ‘20.8.2002’ is written by hand on the left hand corner of the fitrst page of the Draft Order. Also numerous corrections made in the Draft Order have not been initialled by him.
It was also found that the certified copy of which has been issued to the Petitioner and which has been assailed in the present petition, is present in the file but without the signature of Mr. Kakkar. The end of the order only states “sd/-” with the name of Mr. Dinesh Kakkar typed below. Below this to the left is the attestation of Mr. BAV Srinivasan, Under Secretary.
The Department, on the other hand contended that it is the practice followed consistently in the Department of Revenue that only the draft orders are signed by the Adjudicating Authority and, on that basis, certified copies of the final orders are issued to the parties. Therefore the draft order is, for all practical purposes, treated as the final order. According to them, “draft” is a mere appendage and it is in fact the final order.
While rejecting the contention of the Department, the Court observed that the Adjudicating Authority (AA) who makes corrections to a draft order is statutorily obliged to ensure that he or she signs the final order and it is only thereafter that any other officer attest a copy of the said order to be the true copy of the original order. In other words, it is only after the final order in original is signed by the AA that a certified copy thereof can be issued to the parties.
The Court expressed concern over this issue and opined that “If the practice in the Department of Revenue has been to the contrary, it is high time that such practice ceases. It should be done forthwith by issuing appropriate instructions.”
As far as present case is concerned, the result is that there is no valid order passed on the Petitioner’s revision application till date. The draft order dated 20th August 2002 which has no legal status, cannot be held to be a valid order disposing of the Petitioner‟s revision application. The said application has to be treated as still pending adjudication and disposal.” The matter was further remanded to the adjudicating authority to re-hear.
Read the full text of the Judgment below.
