Who will defend Union of India in Tax Cases?
WHO should be the appellant/respondent in a case filed by/against a Government Department?
In Divisional Railway Manager Vs Commissioner of Central Excise, Jaipur-II - 2013-TIOL-1891 CESTAT-DEL, the CESTAT observed,
it is clear and beyond disputation that suits or proceedings against the State can be pursued only in the name of the Union of India or the concerned State, as the case may be.
As per Article 300 of the Constitution of India, the Government of India may sue or be sued by the name of the Union of India.
So, if the Government is the petitioner/appellant in a case, the first appellant should be shown as Union of India - similarly as respondent.
We see many cases like Commissioner of Central Excise vs ….
Anyway, the question now is, "who will appear for the Union of India". The Law Ministry has appointed Additional/Assistant Solicitor General of India to represent Union of India before the High Courts. The CBEC has also appointed its own panel of Counsels in all the High Courts, with the Commissioners choosing the counsel from the panel on a case to case basis. Now, there seems to be a conflict between the Law Ministry appointed ASGs and the Board appointed Counsels.
It seems recently an Additional SG asked the Chief Commissioner to route all litigation pertaining to his zone through the Office of Addl.SG. and Lawyers of UoI, appointed by Ministry of Law and Justice.
CBEC clarifies the issue:
1. UoI will be defended by a Counsel(s) such as Additional Solicitor General/Assistant Solicitor General/CGSC etc. for the respective High Court, appointed by Ministry of Law & Justice, Govt. of India.
2. CBEC Counsel (who are appointed with the concurrence of Ministry of Law & Justice), on panel and authorized by the concerned Commissioner will extend necessary assistance to the Counsel so appointed by Ministry of Law, defending Uol, in a particular case.
3. The CBEC Counsel would, however, defend the other Respondents other than Uol arrayed in a particular case.
4. Where no Counsel to represent Uol is appearing in a case related to indirect tax, the CBEC Counsel may defend Uol also, besides, defending other Respondent(s), so as to avoid a situation Uol going unrepresented.
5. However, once Ministry of Law appointed Counsel has been assigned the case, he/she (Ministry of law appointed Counsel) will have first charge for defending Uol.