Stream-lining departmental response to Supreme Court matters - Board issues fresh instruction - again
Obviously Board is not happy with the way higher appeals are dealt with by the department. In a rare circular signed by CBEC Member (L&J), Board has issued fresh instructions on how appeals to Supreme Court are to be dealt with.
Commissioner should examine every CESTAT order in his jurisdiction.
If he decides that appeal is to be filed with the Supreme Court, he should submit a detailed proposal within 10 days of the receipt of the order of the CESTAT.
If the appeal is against the High Court order, the proposal for appeal should be initiated immediately without waiting for the certified copy, which can be sent later.
It has been the grievance of the officers of the Board that the documents received from the field formations are often illegible and, therefore, care should be taken to send legible copies of the documents.
the need for expeditious and at the same time judicious examination of the order that is proposed to be appealed against, is emphasized
The Board has also prepared a flowchart starting from Commissioner with the time allocations and in case of delay, at every stage, the delaying officer has to give his explanation with his dated signature.
It is really time that Board woke up to the alarming situation. But the interesting fact is that this kind of instructions are nothing new. In the last 15 years, Board had given at least six circulars as mentioned in the latest circular itself. Why is that Board circulars are not followed? Is it sheer disobedience or incompetence?
Not necessarily.
Look at the situation in the Commissionerate.
On a particular day, say ten orders are received from the Tribunal (Of course there will be many days when no orders are received at all). After going through various stages of dak, it reaches the Commissioner by evening. He marks it to his Additional Commissioner which will reach him after two days. The Additional Commissioner will mark it to his Review Superintendent, which will reach him after two days. The Superintendent will mark it to his Inspector which will reach him after a day. The Inspector, if he is a very capable officer will take at least five days to open ten files and put up a note on whether to go in appeal or not. The Superintendent will take at least two days time to put his signature on all these ten files and then send it to his Additional Commissioner, who will take at least three days to study the issue and discuss with his Superintendent and inspector. Then it goes to the Commissioner who would also take at least two days if he is not called by Chief Commissioner for some other important work, or if some Member of the Board or some other VIP is not on visit. Finally the Commissioner gives his consent for sending the proposal to the Board to appeal in Supreme Court and the file has to have the same tiring route back to the Inspector which will take at least five days. And then the proposal has to go to the Board with all the documents and paper books with legible copies. This can easily take ten days. That makes it 33 working days. And that is if all the officers are sincere, some are not on leave/deputation/protocol/help centre/other work. That is if the Xerox machine is working and paper is available to make copies. That is if the back files are traceable. That is if the movement through the channel is uninterrupted. The time schedule mentioned here is not an exaggeration at all - in fact it is a gross understatement. In fact I have left out an important officer, the Assistant Commissioner. In most Commissionerates there is an Assistant Commissioner between the Superintendent and Additional Commissioner to add to further delay. Why does it take two days for a paper to move from one officer to another? Well! That’s the great red tape about which bulky books are written. Here’s how the paper chase works.
A paper comes by post
Normally no one will receive it and the postman has to find a willing person to take it. Nowadays it is so difficult with three or four commissionerates in the same building
It goes to the IC (Inward Correspondence) section where somebody has to put a date stamp.
Then all the papers are to be entered in a register and each paper assigned a number.
All the papers received in a day or the last week (depending on the mood of the clerk and sepoy) are put in two bulky folders, one containing the papers coming from up and the other down.
Papers received from authorities higher than Commissioner only will go to the Commissioner at the DAK stage. Letters from lower formations have a different but equally lethal and self destructive route.
From the IC stage, the folder goes to the top brass of the Commissionerate. Depending on the local practices, this can include apart from the Commissioner, his PS Of course, Additional Commissioner, Assistant Commissioner, Superintendent and AO.
After all these people have seen the papers – mind you this is only a primary cursory look, the folder goes back to where it all began.
Then there is the exercise of distributing all these papers. At every stage somebody marks some paper to somebody
But nobody is ready to accept a paper. The clerk/sepoy has to go round various sections and distribute the papers to the officers concerned.
That officer may not be in his seat when the paper comes and his neighboring officer will not give an acknowledgement. At best he will give the last known address of the officer concerned. Sometimes officers vociferously refuse to take a paper. There can be heated exchanges on whether a letter to tone up appeals should go the review section or technical section and if a trade notice (euphemistically called facility now a days) is to be issued, it has to go to another few sections. So some of the papers remain undistributed.
The un distributed ones go into next day’s distribution list and perhaps it continues for a few days.
In each section where the paper is received, there may be another register and allotment of this paper to a specific officer.
And this dear Sir, is only the beginning. The paper has just reached the person who has to initiate some action on it. At every stage there is a great possibility of the paper getting lost or misplaced. Once in a way if the paper goes to the wrong section, most of the above series of actions has to be repeated. In spite of all this, work gets done; papers move and reports are generated. A great Miracle Indeed!
Coming back to our appeal against CESTAT orders, how do Commissioners still manage to send the papers to the Board within ten days? Some Commissionerates have devised an ingenious way. The orders of the Tribunal do not go through the regular mail channel of the Commissionerate. They are not entered in the register nor are they given an inward receipt number. They simply go to the Section as an unofficial paper. Once a decision is taken to file the appeal and all the papers are ready, then they are entered into the register, assigned a number and a dated stamp is put. And the clicking of the clock starts from that date. Within two days the proposal goes to the Board office!. And they live happily ever after!
As the CBEC Member has raised a very serious issue again, instead of reiterating the same directions given earlier, it may be worth considering a re-haul of the whole system. DDT offers the following suggestions:-
1. As the DRs are the last and latest handlers of the case and they might be having all the details of the case including its weakness and strength, they should be the ones authorized to send proposals for appeal to the Supreme Court against orders of CESTAT. Immediately on receipt of the order, the DR concerned should send a proposal to the Board if an appeal is to be filed. We will of course need more DRs to do this job and it is difficult to find willing officers.
2. Whenever a decision is taken to go in appeal, that CESTAT order should be uploaded in the web site with a copy of the appeal so that other commissioners/ DRS in other places will know of the fact and can file appeal in identical issues with them. It happens quite often that on the same issue, one Commissioner decides to go in appeal while another Commissioner does not.
3. Every Commissioner should have a ‘Standing Counsel’ kind of officer posted in the Tribunal to monitor cases belonging to that Commissionerate.
4. May be the whole work can be outsourced (Not because we may have an interest)
AFTER ALL, IT IS THE REVENUE OF THE NATION WE ARE DEALING WITH AND WE HAVE TO BE A LITTLE MORE CAREFUL.
CIRCULAR NO. , Dated : October 13, 2005