Measures to streamline processing of departmental litigation before Courts and Tribunal - Board's renewed Instructions - Will filed please consider?
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, but as usual, the field officers have been disobeying them with contempt and consistency.
Now the Board has again come out with an exhaustive Circular on this management of litigation. Sparks of wisdom from the Circular:
++ One major cause of concern is delay in receipt of proposals in the Board's office.
++ 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.
++ 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.
++ Grading of cases pending before the Courts is very important for effective monitoring by supervisory officers
++ Henceforth, acceptance of CESTAT's orders or filing of appeals by the Commissioner before the High Courts shall be subject to obtaining the concurrence of the Chief Commissioner. [Does the Board think that any Chief Commissioner will reject a proposal from a Commissioner to file an appeal? Remember the days when Chief Commissioners had to approve Show Cause Notices? Have you ever heard of a CC refusing to approve a Show Cause Notice?]
++ There are instances where the Commissioners filed appeals before the High Court after obtaining some legal advice even though the issue related to valuation or rate of duty. The High Courts rejected revenue appeals as non-maintainable and delayed appeals were filed before the Supreme Court.
++ Board expects the Chief Commissioners to be careful while deciding about the Court to approach.
++ Well conversant officer(s) should be sent by the Commissioners to brief the Departmental Representative / Special Counsels in important matters for effective presentation of the case before the Tribunal.
++ 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. [It is sad that many of the commissionerates do not have basic amenities for preparing for the legal battles – they spend huge amounts of money on cars, carpets, furniture and furnishings, crockery, gym, but they are miserly when it comes to books and subscriptions for technical software, sites. In fact we get calls from dedicated officers requesting us to give a particular case law, a notification etc,. Let us hope the Commissioners will follow the earnest directions of the Board. Incidentally RLT has stopped publishing its print journal.]
++ Every Commissioner will undertake an exercise to sort out important pro-revenue decisions in respect of his jurisdiction and if it is observed that such cases have not been published / uploaded in the ELT/ STR / RLT / www.taxindiaonline.com; send clear, legible and authenticated copy to them for publication in their journals/ website. [We have been requesting Departmental Representatives in the Tribunals to send us copies of the judgements which they would like us to publish and some DRs have been sending us important decisions, which we have been carrying promptly. There were many occasions when cases could be decided in the Tribunal because of our prompt reporting. With a little more co-operation from the Department, we would be able to carry these orders faster. Perhaps Board could persuade the Tribunal to give us soft copies of the orders for faster reporting.]
Board is serious about the business of litigation, but the field should equally be. Issuing a Circular by the Board, is no solution – Board has issued more than 20 circulars on the subject. What is important is COMPLIANCE by the field. Nothing ever happens to anybody who has refused to follow the Board directions. If an appeal which is to be filed in the Supreme Court is filed in a High Court, can there be any excuse? If the Commissioner does not know where to file an appeal who will? Is it not dereliction of duty of the highest order?
The Board's assertion, of taking a serious view of violation of its instructions, is a standing joke in the field – they all know that the Board is never serious – at least that has been the experience in the last 50 years or so.
Why should the Board send these paper missiles? For once let them try to ensure that their instructions are followed and if not followed, the disobedient officers should be taken to task immediately. Simply transfer them to Timbuktu and inform the rest of the world that this particular officer had been transferred because he blatantly disobeyed the Board's genuine legal instructions – and don't entertain any request from him for the next three years. If the Board can do this, it will suddenly find that its instructions are eagerly followed.
If the Board is really serious about effectively defending its cases, it should seriously ensure that field officers do obey its instructions – if not any number of such circulars will have no real effect and Board can continue to issue instructions threatening to take a serious view and the field will continue to smile at the joke.
Maybe this is a harsh commentary on the reality, but reality it is!
CBEC CIRCULAR NO. 935/25/2010-CX, Dated : September 21, 2010