Government of India
Ministry of Finance
Department of Revenue
(Central Board of Excise & Customs)
New Delhi, dated the 21st September 2010
Circular No. 935/25/2010-CX
To,
- All Chief Commissioners and Director Generals under the Central Board of
Excise and Customs.
- CDR, Customs, Excise & Service Tax Appellate Tribunal.
- All Commissioners of Customs / Central Excise/ Service Tax /All Joint Chief
Departmental Representatives / Commissioner, Directorate of Legal Affairs
- [email protected]
Sub:- Measures to streamline the processing of departmental litigation before
the Courts and Tribunal - reg.
Sir / Madam,
It has been the constant endeavor of the Board to streamline the procedures
relating to processing of departmental litigation before the Supreme Court, High
Courts and CESTAT. Several circulars/ instructions have been issued by the
Board, in the past, in this regard prescribing the procedure to be followed and
precautions to be taken by the field formations. However, it has been observed
that more than 50% of the proposals received by the Board suffer from
infirmities including delays beyond limitation period. It has to be appreciated
that the Courts take serious note of such procedural infirmities and
considerable effort, resource and time go into rectifying them. Further, Courts
do not condone delays unless there is adequate justification for the same. The
Board has taken a serious note of the matter and it has been decided to fasten
accountability wherever SLP/Civil Appeal Proposal is received by the Board
without observance of due procedure or with infirmities or later than the
prescribed time frame. The field formations are therefore directed to
scrupulously follow the instructions contained in this circular. Needless to say
that any deviation, without plausible explanation, would be viewed seriously.
2. Delay in receipt of proposals in the Board’s office:
2.1 One major cause of concern is delay in receipt of proposals in the Board’s
office. The reason often cited in most of such cases is either non-receipt or
delay in receipt of the CESTAT and High Court orders by the Commissionerates.
Such delays are avoidable if proper initiatives are taken at local level.
Accordingly, the Board desires that following steps be taken on priority,-
- Zonal Chief Commissioners to issue necessary instruction and to ensure that
an institutional mechanism is put in place for receipt of copy of order and
other communications from the CDR or Jt. CDR, in respect of CESTAT cases.
- Zonal Chief Commissioner having nodal Commissionerate, assigned
coordination work relating to High Court, will ensure putting in place a proper
institutional mechanism for timely dissemination of certified copy of High
Court’s order to respective Commissionerates. The Legal Cell in the
Commissionerates will also develop a system for timely receipt of High Court’s
orders.
- As certified copy of order is essential for filing Special Leave Petition
under Article 136 of the Constitution, the Departmental Counsel may be advised
to invariably file an application for obtaining a certified copy on the date of
pronouncement of the High Court order or on the following day to avoid delay on
this count. Where Government Counsel does not apply for certified copy in the
prescribed time-period, his or her fees are required to be subjected to
deduction. Repeated instances by a particular counsel may be taken note of while
assessing the performance of the counsel in the periodical review exercise.
2.2 It has also been observed that some of the Commissionerates are getting
draft SLP prepared at their end and sending the same to the Board along with
their proposal. While such effort indicates sincerity for defending cases, it
has to be realized that drafting such SLP/CA not only contributes to unnecessary
delay but is also a futile exercise as the Central Agency Section of the
Ministry of Law does not accept such drafted SLPs / CAs. Central Agency
invariably gets the SLP drafted from Drafting Counsels. Therefore this practice
of sending draft SLP/CA should be strictly discontinued with henceforth.
2.3. Similarly, the Commissionerates need not take the legal opinion from the
Standing Counsels in respect of the High Court’s orders for forwarding proposal
to file appeal as the SLPs against the High Court’s orders are filed by the
Board only after obtaining the legal opinion from the Ministry of Law & Justice
and Ld. Law officers of the Government of India.
2.4. The CA proposals should be sent so as to be received in the Boards office
within fifteen days from the receipt of the Order of the Tribunal and SLP
proposal are received within twenty days from the date of the order of the High
Court. The proposal against the High court’s order shall be initiated on the
strength of the copy of the order circulated by the Court on its own motion or
copy downloaded from the website of the Court i.e www.indiancourts.nic.in or
www.courtnic.nic.in without waiting for the certified copy of the order. The
certified copy of the order may be sent separately thereafter. It may be noted
that in case of CA the period of limitation of 60 days begins from the date of
receipt of order. However in case of SLP period of limitation of 90 days begins
from the date of order of the High Court.
2.5. All proposals must be sent by the field formations within the prescribed
time limits. In case of delay, detailed justification should be furnished and
corrective action should be initiated immediately, so that such delays do not
occur in future. Delays on flimsy grounds would be viewed seriously.
3. Quality of proposals:
3.1 Quality of proposals sent by Commissionerates is extremely important for
preparation of Civil Appeal/SLP. However, it has been observed that proposal
lack quality in so far as content is concerned. Therefore, in order to improve
the quality of proposals it has been decided to take the following measures,-
- All CA and SLP proposals would henceforth be approved by the Jurisdictional
Chief Commissioner. While forwarding the proposal a mention must be made in the
covering letter to this effect.
- All such orders which are against revenue but found acceptable by the
Commissioner will be put up to the jurisdictional Chief Commissioner for his
concurrence.
- The office of the Chief / Joint Chief Departmental Representative will
also examine carefully every judgment which is against revenue and forward their
opinion to the concerned Commissionerate if it is felt that an appeal is merited
in the matter. The Commissioners, however, need not wait for such comments and
the same can be sent even after sending the proposal to the Board, in
continuation of the earlier letter forwarding the proposal. The Board, vide its
letter F. No. 390/Misc/411/07- JC dated 6th February 2008 had laid down the
elaborate mechanism for examination of orders in the CDR/Jt CDR office.
- To ensure in-depth analysis and for preparation of comprehensive proposals
the Commissioner shall ensure that legal journals such as ELT, RLT etc and
software or online services such as Jurix, Manupatra, SCC Online, EXCUS, Lawcrux,
Taxindiaonline etc. and reference books, law lexicons are available to the
sections/officers dealing with SLP/CA. The Chief Commissioners should ensure
availability of such books and online journals in the Commissionerates.
4. Documentation required with proposals:
4.1 Another significant aspect that has been found lacking in the proposals is
documentation. Often complete sets of documents are either not enclosed or not
found legible. The List of documents that are required to be enclosed in SLP/CA
proposals is enumerated in Annexure-I. The following measures shall be taken in
this context,-
- With every proposal a certificate signed by Commissioner would be enclosed
certifying that all relevant documents have been enclosed and that all documents
are legible. In case any document is not furnished in the original proposal, the
reason thereof would be furnished and such documents shall be furnished as soon
as possible.
- The technical literature, court orders, judgments, copies of written
submissions as well as material including technical literature which had been
furnished to the Tribunal by the assessee at the time of oral submissions may be
required for preparation of appeal proposal by the Department. The Joint Chief
Departmental Representatives shall ensure that the documents stated above are
preserved and sent to the Commissioner concerned immediately after the
pronouncement of the order so that the said documents can be made a part of the
Paper Book in case it is decided to agitate the matter before the Supreme Court.
In case the documents have not been received by the Commissioner at the time of
sending the CA proposal to the Board, the same should be procured by the
Commissioners from DR’s office and send to the Board as soon as possible.
5. Other measures to improve the processing of litigations:
5.1 Grading of cases pending before the Courts is very important for effective
monitoring by supervisory officers and, therefore, the Chief Commissioners are
advised to devise an appropriate mechanism to prioritize important cases and
classify them in various categories such as cases involving challenge of
constitutional validity of provisions of Act / Rules / Notifications/ Circulars
as Grade – I cases involving revenue of more than
http://www.zopat.com/rupee-symbol/rupee-symbol.jpg1 crore as Grade – II cases
and so on.
5.2 The Directorate of Legal Affairs has been providing assistance and liaising
between the field officers and the Central Agency Section of the Law Ministry
including the Law Officers and Counsels. It has been felt that field formations
are not fully aware of functioning of the Directorate of Legal Affairs, even
though it is discharging important functions. Therefore, details of its
functioning and its role in dissemination of information, revenue’s response in
parties’ appeals and curing of defects of Revenue appeals is placed (Annexure
VI).
5.3 Directorate of Legal Affairs has taken several initiatives to make the
details of ongoing cases in various courts available on the Internet.
Considerable progress has been made towards the dissemination of information
about various lists on the Court’s as well as CBEC websites. A brief on the
measures adopted for facilitating monitoring of the cases is enclosed as
Annexure VII. Most of the information related to listing of cases is available
on the CBEC web site as well as on www.courtnic.nic.in . Officers in the field
are expected to monitor cases pertaining to their Commissionerates with the help
of the information available on these sites. The field officers can now find
online the stage of the case, come forward to assist in proper representation of
the case and provide timely response in the event of queries made.
5.4 The Directorate of Legal Affairs will also compile and circulate a list of
cases where appeals/ review petitions are not pursued in Supreme Court where
amounts are very low or where appeals are dismissed only on grounds of delay or
amount being small. Similar database may be maintained at Commissionerate level
in respect of orders of High Court / CESTAT /Commissioner (Appeals) accepted on
account of limitation or low amount.
6. Dissemination of information regarding cases which are in favour of revenue:
In the event it is observed that pro-revenue decisions have not been published /
uploaded in the publications or web-sites like ELT/ STR / RLT / www.taxindiaonline.com , copies may be sent for publication in these journals/
website.
7. Committee on Disputes (COD) matters
7.1 In matters of COD, the instructions issued by the Cabinet Secretariat have
been circulated by the Board from time to time. However, it is seen that delayed
proposals, incomplete or illegible documents and pages not having been numbered,
are being received and commented upon by the Committee on Disputes. The
enclosures should be legible and all the documents should be page numbered for
ease of reference. Also, all the relevant orders should be enclosed. Further, it
is once again reiterated that proposals having revenue implication of http://www.zopat.com/rupee-symbol/rupee-symbol.jpg
5 lakhs and below need not be sent for approval by the High Powered Committee.
8. The above instructions in brief enumerate the steps/measures being taken or
to be taken to improve the mechanism of litigation. The comprehensive
instructions in details are contained in Annexures as per details mentioned in
para 9 below. Further these instructions cast certain responsibilities on Chief
Commissioners, Commissioners and CDR office. Therefore, to ensure compliance of
these instructions, a one time report on the points mentioned in Annexure VIII
will be furnished by all Zonal Chief Commissioners and CDR by 31st December
2010.
9. In order to reduce departmental litigation, Board has decided to fix monetary
limits below which appeals shall not be filed before the Tribunal and Courts.
Separate instruction in this regard is being issued.
10. The details of Annexures:
Annexure-I |
Instruction as regards litigation before the Supreme Court |
Annexure- II |
Instruction as regards litigation before the High Court |
Annexure III |
Instructions for improving the quality of Departmental
Representation before CESTAT |
Annexure-IV |
Instruction as regards action for dissemination of judgments in
revenue’s favour |
Annexure-V |
Instructions as regards disputes between Government Department and
Central PSUs
/ other Government Departments |
Annexure-VI |
The functioning of the Directorate of Legal Affairs |
Annexure-VII |
The mechanism of listing of appeals / SLPs as followed by Supreme Court
Registry, alertness expected from Commissioners and marking of cases to the
Counsels |
Annexure -VIII |
Points on which Zonal Chief Commissioner and CDR will furnish a one
time compliance report |
11. The following circulars/instruction on becoming redundant upon issuance of
these instructions stand superseded:
-
Circular No. 313/29/97-CX., dated 6th May1997
-
Circular No 33/97- Cus dated 4th Sep1997
-
Circular No 332/48/97 –CX dt 9th Sep 1997
-
Circular No 349/65/97 –CX dt 31st Oct 1997
-
Circular No. 402/35/98-CX., dated 9th June1998
-
Circular No 488/54/99 JC dt 12th Oct 1999
-
Circular No 517/13/2000 CX dt 2nd March 2000
-
Circular No 519/15/2000 CX dt 3nd March 2000
-
Circular No 544/40/2000 CX dt 6th Sep.2000
-
Circular No 550/46/2000 CX dt 18th Sep 2000
- Circular no. 891/16/2005 CX dated 13th October 2005
-
Circular No 835/12/2006 CX dt 6th Oct 2006
- Circular No 863/1/2008 CX dt 2nd Jan 2008
12. The following Circulars / letters issued by the Board that find mention in
this Circular and its annexures are not being withdrawn
- Letter F. No. 390/Misc/411/07- JC dated 6th February 2008
- D.O.F. No.390/Misc/411/07-JC dated 7th January 2008
- Letter F No 390/R/135/2008-JC dated.9.5.08.
- Circular No 27/27/94-CX dated 2.3.94 as modified from time to time.
-
Circular No 156/67/95-CX dated 17.11.95,
-
Circular No.515/11/2000-CX dated 18.2.2000
- Circular No. 578/15/2001-CX dated 20-06-2000
- Letter F No 390/R/187/2009-JC dated 10.8.2009.
13. Receipt of this Circular may please be acknowledged.
14. Hindi version will follow.
(Sunil K Sinha)
Director (JC)
F. No. 390/Misc./100/2009-JC