TIOL-DDT 32 · the untouched capture
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<html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body bgcolor="#FFFFFF"> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#0000FF" size="3">TIOL-DDT 32</font><br> 14 1 2005<br> Friday</b></font></p> <p align="center"><font color="#009933" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>If a case is worth fighting, isn’t it worth fighting well?</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>YESTERDAY TIOL </b>carried a story and a judgement of the Supreme Court of India wherein their Lordships sadly observed : <br> <br> "This matter, like so many others, on our Board for the last few months, indicates the <b>negligent and callous manner in which the Revenue is dealing with litigation.</b> In matter after matter, we have found that relevant documents have not been filed with the paper books. Even at the time of hearing neither the Advocate-on-Record nor arguing Counsel have the relevant documents with them. In most cases it is the other side which supplies the relevant documents. On being queried by Court, Counsel frankly states that <b>no officer is coming forward to give any instructions or supply any documents. Even with the stakes being so high there is apparent callousness and negligence on the part of the Revenue authorities.</b> It is hoped that this sorry state of affairs will get remedied and proper instructions given and documents supplied to the Advocates-on-Record and the arguing counsel." - 2005-TIOL-06-SC-CX-LB<br> <br> Bad orders, callous approach, absolute non-cooperation, not–my-job attitude and the general lethargy and inherent incompetence have all together made it almost impossible for the department to win a case beyond the first appellate stage. Even the few cases they win are mostly because the judges don’t allow the department to lose cases just because of incompetence. The interest in filing an appeal is not sustained when it comes to pursuing the case, because too many people are involved, may be each working against the other, certainly not working <b>with</b> the other. The above extracted comments are not an isolated example - they are rather the rule. Let’s see a few of the Gems from the Hon’ble judges on our adjudication and appellate strategy.<br> <br> The Allahabad High Court, a few years ago, remarked, <br> <br> <b><font color="#0000FF">It is regretfully pointed out that in excise and custom matters involving highest stakes no one is putting in appearance for the respondents and, therefore, most of the cases go unattended on behalf of the respondents.</font></b>- 1997 (93) E.L.T. 332 (All.)<br> <br> You know what happened when this judgement was delivered. The Government got angry and went in appeal to the Supreme Court. The Apex Court dismissed the appeal as time barred, as the Government could not properly explain the delay of 310 days – yes! nearly an year. - U.O.I. v. Hindon Rubbers Pvt. Ltd. - 1998 (102) E.L.T. A225 (S.C)<br> <br> Long ago, the Bombay High Court had expressed hopes that the State will behave responsibly in litigation,<br> <br> Before parting with this Appeal we would like to express our distress at this wasteful and futile litigation. There was almost nothing to be said by the Appellants and the Union of India so far as the merits of the case were concerned. As we have mentioned earlier, no arguments have been attempted to be advanced to justify the orders of the authorities .xxxxx. <br> <br> This we may well expect from a private litigant who seeks to postpone the evil day, but these are certainly not pleas which we expect from the Government and its officers. Xxxx <br> <br> Today the Government, both the Central and the State Government, are expressing great concern for what is termed arrears in Courts. We are constrained to observe that a Considerable part of such arrears is due to litigations of this type in which the State or the Union is a party and is the result of the attitude which the Government adopts towards legal proceedings which are filed against it. We express a hope that hereafter in legal proceedings against the Government will adopt an approach consistent with and befitting its role as a social welfare State. With these words and with the expectation that these words will not fall on deaf ears, we dismiss this Appeal. -<b>1979 (4) E.L.T. (J 286)(Bom.)</b><br> <br> The Bombay High Court again had an occasion to rap the Government for irresponsible expenditure in litigation,<br> <br> This is an entirely frivolous Appeal filed by the Union of India as representing the Collector of Customs from a proper reasoned order of the Writ Court. --- However, the Customs Department, like almost all the departments of the Government, are reluctant to part with money irrespective of whether the money has been legally recovered or not. It is clear to us that having lost in the Writ Court they have filed this frivolous Appeal since there is <b>no control over wastage of public time and money by such departments.</b> -1990 (45) E.L.T. 238 (Bom.)<br> <br> The Calcutta High Court was more devastating when it observed,<br> <br> The respondents have argued this case needlessly for 3 days. <b>What is fun to the Department is death to an individual writ petitioner</b>. -1993 (68) E.L.T. 551 (Cal.)<br> <br> On another occasion, the High Court observed that cavalier attitude cost the revenue dear,<br> <br> we find that the Central Government has functioned in a cavalier manner. They have disobeyed the order of the Supreme Court by not filing the affidavit, as directed. No steps whatsoever have been taken to remove office objections. There was no effective filing of the Review Petition and in the process, the exchequer has suffered. - 1994 (69) E.L.T. 206 (Bom.)<br> <br> Refusing to pace a premium on the negligence of the Government officers and to introduce an element of uncertainty in litigation, the Calcutta HC observed, <b>At the highest it may be said that the officers of the Customs Department had been negligent in placing the relevant facts before their Counsel</b> - 1994 (70) E.L.T. 203 (Cal.)<br> <br> On the careless way a wrong affidavit was filed in the court, the Bombay HC remarked, “we are surprised how such an affidavit was prepared, sworn and then tendered in Court. The copies of the exhibits are also not furnished to the counsel for the petitioners. It is very sad state of affair and we hope that such carelessness will not be repeated” .- 1995 (79) E.L.T. 550 (Bom.)<br> <br> The AP High Court was not happy with the arbitrary style of the department and remarked,<br> <br> <b>It is high time that the Central Excise authorities wake up to the requirements of fair play</b> as laid down by innumerable decisions of the Apex Court and observe the principles of natural justice in taking actions resulting in civil consequences, eschewing arbitrariness that is anathema to Article 14 of the Constitution. -1998 (98) E.L.T. 32 (A.P.)<br> <br> The Bombay High Court did not approve the action of the department in hiding facts from the Court and observed,<br> <br> ---shows a very sorry state of affairs as far as the functioning of the Respondents are concerned. Firstly, <b>one officer has passed two different contradictory orders giving a benefit to a particular party for reasons which are quite clear for one to understand.</b> This having been brought to the notice of the authorities concerned, they have kept quiet about it. Even as far as the present court proceedings are concerned, all the relevant papers were kept back from the court and they were placed from time to time only in view of different orders passed by the court. 2003 (153) E.L.T. 528 (Bom.)<br> <br> The Supreme Court was appalled at the way delayed appeals were filed without explaining the delay,<br> <br> We have come across that cases are invariably filed with enormous unexplained/casually explained delay. This state of affairs is continuing for quite some years. We wish to express our anguish that in spite of the Court pointing out the haphazard way of filing application for condoning delay, no improvement is forthcoming. <b>Ultimately it is the Revenue that suffers as a result of dismissal of cases on the ground of delay. We hope that at least in future, the appeals are filed in time and if there is any delay, it is explained properly</b>.- 1999 (107) E.L.T. 289 (S.C.)<br> <br> <font color="#FF0000"><b>Do you see light at the end of tunnel? </b></font><br> <br> Since this edition of DDT is full of citations, let me end it with a spark from Justice Jeevan Reddy extracted from 1994 (72) E.L.T. 788(S.C.)<br> <br> Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to fail. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. --</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <font color="#0000FF"><b>It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. </b></font><br> <br> <font color="#FF0000"><b>Until Monday with more of DDT<br> <br> Have a Nice Day and Happy Shankrantimail </b></font></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Your comments to <font color="#0000FF">vijaywrite@taxindiaonline.com</font> </b></font></p> <p align="justify"></p> </body> </html>