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The Indirect Tax Ombudsman Guidelines 2011
The Guidelines 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 such
complaints.
CHAPTER I
PRELIMINARY
1. Short title, commencement, extent and application
I. These Guidelines shall be known as the Indirect Tax Ombudsman
Guidelines, 2011.
II. They shall come into force from 11th May, 2011.
2. Definitions
I. ‘authorized representative’ means a person duly appointed and
authorized by a complainant to act on his behalf and represent him in the
proceedings under these guidelines for consideration of his complaint.
II. ‘award’ means an award passed by the Ombudsman in accordance with
these Guidelines.
III. ‘complaint’ means a representation in writing or through electronic means
containing an administrative grievance alleging deficiency in the working of
the Customs, Central Excise and Service Tax Department as mentioned in
clause 9 of the Guidelines.
IV. ‘guidelines’ means The Indirect Tax Ombudsman Guidelines, 2011.
V. ‘Customs, Central Excise and Service Tax authority complained
against’ means 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 an
Appraiser of Customs or a Superintendent of Customs, then this term shall
mean the officer in the rank Superintendent of Central Excise or an
Appraiser of Customs or a Superintendent of Customs who is in-charge of
such official.
VI. ‘Ombudsman’ means any person appointed under Clause 3 of these
Guidelines.
CHAPTER II
ESTABLISHMENT OF THE OFFICE OF INDIRECT TAX OMBUDSMAN
3. Appointment and Tenure
I. 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.
II. The Ombudsman selected shall be a person who has held a post in the
Government of India in the HAG pay scale of ` 67,000 -79,000 on regular
basis for at least one year or in a higher grade and shall preferably be a
resident of the city where he/she is proposed to be appointed. He/she
shall be a serving officer (as on the last date for receipt of applications )
preferably of the Indian Revenue Service (Customs and Central Excise).
If a suitable officer from that service is not available, officers of equivalent
grade of any other group „A‟ service of the Central Government may be
appointed as Ombudsman. When appointed as Ombudsman, the officer,
if he/she is still in service under the Government of India, shall seek
retirement from Government service before entering upon his office as an
Indirect Tax Ombudsman.
III. The Ombudsman shall be independent of the jurisdiction of the Customs,
Central Excise and Service Tax department.
IV. The Ombudsman shall be appointed for a tenure of 2 years extendable
by one year based on performance appraisal or till the incumbent attains the
age of 63 years, whichever is earlier. There shall be no reappointment.
Performance appraisal shall be made by the Committee constituted in clause
3.I.
4. Remuneration
The Ombudsman shall be allowed pay and allowances as applicable to a
Central Government Officer in the HAG+ pay scale of ` 75500-80,000. Any
pension to which he is entitled from the Central Government / State
Government shall be deducted from his salary.
5. Territorial Jurisdiction
The Central Government shall specify the territorial jurisdiction of each
Ombudsman.
6. Location of offices
The offices of Indirect Tax Ombudsman shall be located at Delhi, Mumbai,
Chennai, Kolkata, Bangalore, Ahmedabad and Lucknow.
7. Secretariat
Each Ombudsman shall be provided with an office space of appropriate size
and a secretariat staff consisting of a Private Secretary, Tax Assistant and a
Peon by the Central Board of Excise and Customs.
CHAPTER III
8. Powers and Duties
I. The Ombudsman shall have the powers to –
a) receive complaints from taxpayers on any matters specified in
clause 9;
b) 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;
c) require the Customs, Central Excise and Service Tax Authority
complained against or any other related Customs, Central Excise
and Service Tax 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 its possession; provided
that 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;
d) suggest remedial measures for redressal of grievances; and
e) report his findings to the Secretary, Department of Revenue,
Government of India and the Chairman CBEC for appropriate action
against erring officials;
f) Ombudsman shall not have any authority over the Central Board of
Excise and Customs and Directorates under Central Board of
Excise and Customs as these are Attached offices of Central Board
of Excise and Customs.
II a) In cases where action is to be taken by the CBEC and the
Directorates under the CBEC which are attached offices of the
CBEC, the Indirect Tax Ombudsman shall only have powers of
recommendation.
b) The Indirect Tax Ombudsman shall not have jurisdiction in cases
where proceedings have been initiated under Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988.
III The Ombudsman shall have the following duties:
a) to exercise general powers of superintendence and control over his
office and be responsible for the conduct of business in his office;
b) 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 the person furnishing such
information or document; provided that nothing in this clause shall
prevent the Ombudsman from disclosing information or documents
furnished by a party in a complaint to the other party or parties, to
the extent considered by him to be reasonably required to comply
with the principles of natural justice and fair play in the
proceedings;
c) to protect individual taxpayer‟s rights;
d) 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;
e) to send a monthly report to the Chairman, CBEC and Secretary,
Department of Revenue in the Ministry of Finance recommending
appropriate action. The report shall also highlight cases where
action needs to be taken against erring Customs, Central Excise
and Service Tax authorities for their failure to redress the
grievance. The report will be accompanied with primary evidence
needed to initiate action against the delinquent persons;
f) 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, Ministry of
Finance and the Chairman, CBEC along with such other
information as may be considered necessary by him/her. In the
annual report, the Ombudsman, on the basis of grievances
handled by him, will 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
g) 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, Central Board of Excise and
Customs before the end of April so that this information can be
reflected in the Annual Confidential Reports of the officers
concerned.
CHAPTER IV
PROCEDURE FOR REDRESSAL OF GRIEVANCE
9. Grounds on which complaint shall be filed:-
I. 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:
(a) 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;
(b) delay in adjudication;
(c) delay in registration of tax payers;
(d) delay in giving effect to Appellate orders;
(e) non adherence to the principle of “ First Come First Served” in
sending refunds;
(f) non adherence to the rules prescribed for disbursement of
drawback;
(g) non acknowledgement of letters or documents sent to the
department;
(h) 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;
(i) non adherence to prescribed working hours by Customs,
Central Excise and Service Tax officials;
(j) unwarranted rude behaviour of Customs, Central Excise and
Service Tax officials with assessees;
(k) 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.
Provided that, if on any of the grounds above, the responsibility
for taking action is with the Central Board of Excise and
Customs or on a Centralized authority eg., {Director General
(Systems) }, then the Ombudsman shall not have the power to
pass an award as specified in para 13 below. In such cases,
the decision of the Ombudsman shall be recommendatory in
nature and shall be forwarded in writing to the Revenue
Secretary or the Chairman, CBEC or the centralized authority,
as the case may be.
II Central Board of Excise and Customs may include any other ground
on which a complaint may be filed with the Ombudsman.
10. Procedure for filing the complaint
I. Any person, who has a grievance against the Customs, Central
Excise & Service Tax Department under the Government of India‟s
Department of Revenue, 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.
II.
a. The complaint shall be duly signed by the complainant or his
authorized representative, if any, and 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;
b. A complaint made through electronic means shall also be accepted
by the Ombudsman and a print out of such complaint shall be taken
on the record of the Ombudsman;
c. 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.
d. 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.
III No complaint to the Ombudsman shall lie unless:-
(a) 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 its receipt by the
Grievance Cell.
(b) where the complainant had made a complaint in writing to the
Grievance Cell of the concerned indirect tax office and he is not
satisfied with the reply given to him.
(c) 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;
(d) 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;
(e) 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
(f) the complaint is not frivolous or vexatious in nature.
IV. No Complainant shall be made to the Indirect tax Ombudsman 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.
11. Proceedings to be summary in nature
The Ombudsman shall not be bound by any legal rules of evidence
and may follow such procedure that appears to him to be fair and
proper. The proceedings before the Ombudsman shall be summary in
nature.
12. Settlement of complaints by agreement
I. As soon as it may be practicable so to do, the Ombudsman shall
cause a notice of the receipt of any complaint along with a copy of the
complaint to be sent to the Customs, Central Excise and Service Tax
Authority Complained Against and endeavour to promote a
settlement of the complaint by agreement between the complainant
and such authority through conciliation or mediation;
II. For the purpose of promoting a settlement of the complaint, the
Ombudsman may follow such procedure as he may consider
appropriate.
13. Award by the Ombudsman
I. If a complaint is not settled by agreement within a period of one month
from the date of receipt of the complaint or such further period as the
Ombudsman may consider necessary, he may, subject to the proviso
in para 9.I ante, 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.
II. The „award‟ passed under sub-clause (1) above shall be a speaking
order comprising of the following:
a) 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;.
b) A token compensation amount not exceeding ` 5000/-(Rupees
Five Thousand only) for the loss suffered by the complainant.
c) Designation of the Customs, Central Excise and Service Tax
officer to whom the letter of acceptance of the award is to be
communicated as detailed in clause 13.4.
III A copy of the „award‟ shall be sent to the complainant and the
Customs, Central Excise and Service Tax Authority complained
against.
IV The „award‟ shall be binding on the concerned Customs, Central
Excise and Service Tax office as well as on 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 or 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.
V Any token compensation given as a part of the award shall be paid by
the concerned Customs, Central Excise and Service tax office out of
the budget allocated under the head „Office Expenses‟ of the office of
the concerned Customs, Central Excise and Service Tax Authority
complained against. Such payments shall take priority over any other
expenditure from this allocation.
VI The Customs, Central Excise and Service Tax Authority complained
against shall, within one month from the date of the award, comply with
the award and intimate compliance to the Ombudsman.
CHAPTER V
MISCELLANEOUS
14 Removal of difficulties
If any difficulty arises in giving effect to the provisions of these
Guidelines, the Central Government may make such provisions not
inconsistent with the Customs, Central Excise and Service Tax
statutes or the Guidelines as it appears to it to be necessary or
expedient for removing the difficulty.
