THE INDIRECT TAX OMBUDSMAN GUIDELINES, 2011.

[Mr. M. GOVINDARAJAN]

INTRODUCTION: 

                        The Indirect Tax Ombudsman Guidelines, 2011 are introduced with the objective of enabling the resolution of complaints relating to public grievances against the Customs, Central Excise and Service Tax Department and to facilitate the satisfaction or settlement of disputes.   These guidelines came into effect from 11.05.2011.  According to these guidelines a complaint may be filed against the deficiency in the working of Customs, Central Excise and Service tax department for getting resolution.

AGAINST WHOM COMPLAINT MAY BE FILED

                        The complaint may be filed against

• The junior most Customs, Central Excise and Service Tax officer not below the rank of a Superintendent of Central Excise; or
• An appraiser of Customs or  a Superintendent of Customs who has given the cause of grievance to the complainant. 

If the grievance has been caused by an official lower in rank than a Superintendent of Central Excise or appraiser of Customs or a Superintendent of Customs, then this term shall mean the Officer in the rank of Superintendent of Central Excise or an Appraiser of Customs or a Superintendent of Customs who is in charge of such official. 

TYPE OF COMPLAINTS THAT CAN BE FILED:

                        A complaint on any one or more of the following grounds alleging deficiency in the working of the Customs, Central Excise and Service tax department may be filed with the Ombudsman: 

• delay in the issue of refunds or rebate beyond time limits prescribed by law or under the relevant instructions issued from time to time by the Central Board of Excise and Customs;
• delay in adjudication;
• delay in registration of tax payers;
• non adherence to the principle of ‘First Come First Served’ in sending refunds;
• non adherence to the rules prescribed for disbursement of drawback;
• non acknowledgement of letters or documents sent to the department;
• delay in release of seized books of account and assets, after the proceedings under the Customs, Central Excise and Service Tax statutes in respect of the years for which the books of account or other documents are relevant are completed;
• non adherence to prescribed working hours by Customs, Central Excise and Service tax officials;
• unwarranted rude behavior of Customs, Central Excise and Service Tax Officials with assessees;
• any other matter relating to violation of the administrative instructions and circulars issued by the Central Board of Excise and Customs in relation to Customs, Central Excise and Service tax administration.
• Any other grounds as may be included by the Central Board of Excise and Customs. 

OMBUDSMAN:

                        The Ombudsman is appointed on the recommendations of a committee consisting of- 

• The Secretary, Department of Revenue in the Ministry of Finance;
• The Chairman, Central Board of Excise and Customs; and
• The Member (Personnel & Vigilance), Central Board of Excise and Customs (CBEC)

the Central Government may appoint one or more persons as Ombudsman..   The Ombudsman shall be independent of the jurisdiction of the Customs, Central Excise and Service Tax Department.  The tenure of the Ombudsman shall be 2 years extendable by one year based on performance appraisal or till the incumbent attains the age of 63 years, whichever is earlier.   There is no reappointment.  The Central Government shall specify the territorial jurisdiction of each Ombudsman.   The offices of Indirect Tax Ombudsman shall be located at Delhi, Mumbai, Chennai, Kolkata, Bangalore, Ahmedabad and Lucknow.  Each Ombudsman shall be provided with an office and a Secretariat staff consisting of a Private Secretary, tax Assistant and a peon by the Central Board of Excise and Customs. 

PROCEDURE FOR FILING THE COMPLAINT:

• Any person having a grievance against the Customs, Central Excise and Service Tax Department may himself or through his authorized representative, if any, make a complaint against the concerned Customs, Central Excise and Service tax official in writing to the Ombudsman having jurisdiction over that office;
• No complaint to the Ombudsman shall lie unless-

• The complainant had, before making a complaint to the Ombudsman, made a written representation to the Grievance Cell of the concerned Customs, Central Excise and Service tax office and did not receive any reply within one month from the date of receipt of the Grievance Cell;
• Where  a reply is provided to him he is not satisfied with the reply given to him;
• Where the complainant had before making a complaint to the Ombudsman, made a written representation to the Customs, Central Excise and Service Tax authority superior to the one complained against and either such authority had rejected the complaint or the complainant had not received any reply within a period of one month after such authority had received his representation or the complainant is not satisfied with the reply given to him by such authority;
• The complaint is made not later than one year after the complainant has received the reply of the concerned Customs, Central Excise and Service Tax office to his representation or, in case, where no reply is received, not later than one year and one month after the representation to the Customs, Central Excise and Service Tax Authority;
• The complaint is not in respect of the same subject matter which was settled through the office of the Ombudsman in any previous proceedings whether or not received from the same complainant or any one or more of the parties concerned with the subject matter; and
• The complaint is not frivolous or vexatious in nature.
• Directions to the concerned Customs, Central Excise and Service Tax Authority on performance of its obligations like expediting delayed matters, giving reasons for decisions/orders and issuing apology to complainants etc., except a direction affecting the quantum of tax assessment or imposition of penalties under the Customs, Central Excise and Service Tax statutes;
• A token compensation amount not exceeding Rs.5,000/- for the loss suffered by the complainant;
• Designation of the Customs,  Central Excise and Service Tax Officer to whom the letter of acceptance of the award is to be communicated;

• No complaint shall be made on an issue which has been or is the subject matter of any proceeding in an appeal, revision, reference or writ before any Customs, Central Excise and Service Tax Authority or Appellate Authority or Court;

• The complaint shall be duly signed by the complainant or his authorized representative;
• The complaint shall clearly state the complainant’s name and address, the name of the office and official of the Customs, Central Excise and Service Tax Office against whom the complaint is made,  the facts giving rise to the complaint supported by documents, if any, relied on by the complainant and the relief sought from the Ombudsman;
• Complaint may also be made through electronic means.   In this case a print out of such complaint shall be taken on the record of the Ombudsman.  A printout of the complaint made through electronic means shall be signed by the complainant at the earliest possible opportunity before the Ombudsman takes steps for conciliation or settlement;
• The signed printout shall be deemed to be the complaint and it shall relate back to the date on which the complaint was made through electronic means;
• The Ombudsman shall not be bound by any legal rules or evidence and may follow such procedure that appears to him be fair and proper.   The proceedings before the Ombudsman shall be summary in nature;
• The Ombudsman shall cause a notice with a copy of the complaint to the Customs, Central Excise and Service Tax Authority complained against;
• The Ombudsman shall try to promote a settlement of the complaint by agreement between the complainant and such authority through conciliation or mediation;
• For promotion a settlement of the complaint, the Ombudsman may follow such procedure as he may consider appropriate;
• If the complaint is not settled within a period of one month the Ombudsman may consider necessary, he may, pass an award after allowing the parties a reasonable opportunity to present their case.   He shall be guided by the evidence placed before him by the parties, the principles of Customs, Central Excise and Service Tax law and practice, directions, circulars, instructions and guidelines issued by the Central Board of Excise and Customs or the Central Government from time to time and such other factors which in his opinion are necessary in the interest of justice;
• The award shall be a speaking order comprising of the following:-

• A copy of the award shall be sent to the complainant and Customs, Central Excise and Service Tax Authority complained against;
• The award shall be binding on the concerned Customs, Central Excise and Service Tax Office as well as the  complainant provided that an award shall not be binding on  the Customs, Central Excise and Service Tax office unless the complainant furnishes to it, within a period of 15 days from the date of receipt of a copy of the award, a letter of acceptance of the award in full and final settlement of his complaint;
• If the complainant does not accept the award passed by the Ombudsman or fails to furnish his letter of acceptance of within the said period of 15 days or within such time, not exceeding a period of 15 days or within such time, not exceeding a period of 15 days that may be granted by the Ombudsman, the award shall lapse and be of no effect;
• The compensation amount shall be paid the concerned Customs, Central Excise within one month from the date of award and intimate compliance to the Ombudsman. 

POWERS OF OMBUDSMAN:

                        The Ombudsman shall have the following powers to- 

• receive complaints from tax payers on any matters;
• consider such complaints and facilitate their satisfaction or settlement by agreement, through conciliation and mediation between the Customs, Central Excise and Service Tax Department and the aggrieved parties or by passing an ‘award’ in accordance with the guidelines;
• require the Customs, Central Excise and Service tax authority complained against or any other related authority to provide any information or furnish certified copies of any document relating to the subject matter of the complaint which is or is alleged to be in possession;
• in the event of failure of such authority to comply with the requisition without any sufficient cause, the Ombudsman may, if he deems fit, draw the inference that the information, if provided or copies if furnished, would be unfavorable to the concerned Customs, Central Excise and Service Tax Authority;
• suggest remedial measures for redressal of grievances;
• report his findings to the Secretary, Department of Revenue, Government of India and the Chairman, CBEC for appropriate action against erring officials;
• in cases where action is to be taken by the CBEC and the Directorates under the CBEC which are attached officers of the CBEC, the Ombudsman shall only have the powers of recommendations;
• he shall not have jurisdiction in cases where proceedings have been initiated under COFEPOSA and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. 

DUTIES OF OMBUDSMAN:

                        The Ombudsman shall have the following duties: 

v  to exercise general powers of superintendence and control over his office and be responsible for the conduct of business in his office;

v  to maintain confidentiality of any information or document coming into his knowledge or possession in the course of discharging his duties and not to disclose such information or document to any person except with the consent of person furnishing  such information or document;

v  he is not prevented from disclosing information or documents furnished by a party in a complaint to the other part, to the extent considered by him to be reasonably required to comply with the principles of natural justice and fair play in the proceedings;

v  to protect individual taxpayer’s rights;

v  to identify issues that increase the compliance burden or create problems for taxpayers, and to bring those issues to the attention of the CBEC and the Ministry of Finance;

v  to send a monthly report to the Chairman, CBEC and Secretary, Department of Revenue in the Ministry of Finance recommending appropriate action;

v  the report shall highlight cases where action needs to be taken against erring Customs, Central Excise and Service Tax Authorities for their failure to redress the grievance;

v  to furnish a report every year containing a general review of activities of the office of the Ombudsman during the preceding financial year to the Secretary, Department of Revenue and the Chairman, CBEC along with such other information as may be considered necessary;

v  to review the quality of the working of the Customs, Central Excise and Service Tax Department and make recommendations to improve the indirect tax administration; and

v  to compile a list of awards passed by it between April and March of each financial year in respect of every Customs, Central Excise and Service Tax Authority complained against, by name and report it to the controlling Chief Commissioners of the officers concerned and the Chairman, CBEC before the end of April so that the information can be reflected in the Annual Confidential Reports of the officers concerned.