Stream-lining departmental response to Supreme Court matters – Instructions - Central Excise - 819/16/2005

CIR NO.819/16/2005-CX, DT. 13/10/2005 Stream-lining departmental response to Supreme Court matters - Instructions You are aware that Board has issued instructions from time to time regarding the response of the department concerning litigation before the Supreme Court. Your attention in this regard is invited to Board's circulars below:- i) Circular No.313/29/97-CX, dated 6.5.1997 issued vide F.No.390.107/97-JC. ii) Circular No.402/35/98-CX dated 9.8.1998 issued vide F.No.390/107/97-JC. iii) Circular No.710/26/2003-CX dated 23.4.2003 issued vide F.No.390/198(M-2)12002-JC. iv) Circular No.746/62/2003-CX dated 22.9.2003 issued vide F.No.390/85/2003-JC. 2. It is reiterated that the Commissioner should examine every CESTAT order passed for his jurisdiction and on arriving at a view that the order should be appealed before the Supreme Court non law point involving rate of duty or valuation, the Commissioner shall submit a detailed proposal giving grounds for appeal and all related documents, namely the following:- i) Copies of SCNs along with relied upon documents; ii) Copy of Order-in-Original/Order-in-Appeal iii) Certified copy of CESTAT order indicating date of receipt by the Commissioner along with appeal Paperbook; iv) Board's instructions, if any; v) Copies of relied upon decisions in the CESTAT order along with their status; and vi) Any other relevant document The said proposal should be sent to the Board, by name to the Joint Secretary (Review), Central Board of Excise Customs, 4th Floor, 'B' Wing, HUDCO - Vishala Building, Bhikaji Cama Place, R.K Puram, new Delhi - 110 066 in the proforma prescribed (copy enclosed at Annexure-I) within 10 days from the date of receipt of the certified copy of the CESTAT order in Commissioner's office. 3. As regards filing of Special Leave petitions, Civil Appeals against the orders of High Courts passed in writ petitions filed by the parties or appeals filed by the Department or by the assesses, Legal Cell has issued the following circulars from time to time:- (i) D.O. Letter F.No.275/45/91-CX.8A dated 26th June, 1991 (ii) Letter F.No.275/14/97-CX.81-A dated 13th February, 1997 (iii) Letter F.No.275/51/2004-CX.8A dated 13th August, 2004. In addition to the documents prescribed in paragraph 2 above, all documents filed during the proceedings before the High Court, namely writ petition, copy of the appeal under Section 35G or 130A, reply/re-joinder filed, if any, interim order(s) passed, miscellaneous application filed during the course of the hearing etc., should be sent along with the proposal. In Criminal matters, documents seized, statements recorded, if any and other relevant documents prepared during the course of the investigation in vernacular should be accompanied by proper English translation duly authenticated by a gazetted officer not below the rank of an Assistant Commissioner certifying the correctness of the translation correctness of the translation. 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. 4. It has also been brought to the notice of the Board, that the proposals for appeal before the Supreme Court against the High Court's orders are initiated on the strength of the copy of the order circulated by the Court on its own motion without applying for the certified copy. The limitation prescribed under the Supreme Court Rules in such matters are calculated from the date of the order and is 90 days for filing SLP against an order passed in a writ or a writ appeal and 60 days for filing a civil appeal against an order of the High Court in an application filed under Section 35G of the Central Excise Act, 1944 or Section 130A of the Customs Act, 1962 as the case may be. Therefore, all proposals should be initiated within 10 days from the date of the order on the strength of an ordinary copy of the order without waiting for the certified copy from the High Court. The procedure for obtaining the certified copy should be initiated immediately on pronouncement of the judgment, preferably the date of pronouncement of the order or the day after, and the original certified copy may be sent thereafter. All proposals for filing SLP/ Appeal against the orders of the High Court should be addressed by name to the Director (Legal), Central Board of Excise and Customs, 5th Floor, 'C' Wing, HUDCO - Vishala Building, Bhikaji Cama Place, R.K. Puram, New Delhi -110066. 5. You are also aware that the limitation prescribed for filing a Civil Appeal before the Supreme Court is 60 days and the same for SLP is 90 days from the receipt of the order. In this context, the need for expeditious and the same time judicious examination of the order that is proposed to be appealed against, is emphasized. A flowchart along with time allocations is enclosed. This flowchart will be initiated at the level of the Commissioner's Office, and shall constitute an essential part of the file throughout its movement. In the event of any delay beyond allocated time, the concerned person delaying the matter will give an explanation for the said delay at the time of onward movement, with dated signature on the flowchart. This may be strictly adhered to by all concerned. Necessary instructions on this should be issued and copy endorsed to this office. 6. Kindly acknowledge receipt. F.No.390/101/2005-JC (Kailash Sethi) Member (L J) ANNEXURE - 1 PROFORMA COMMISSIONER'S COMMENTS/REPORTON TRIBUNAL ORDER 1. NUMBER AND DATE OF THE TRIBUNAL ORDER 2. DATE OF RECEIPT IN THE COMMISSIONERATE 3. ISSUE INVOLVED BEFORE THE BENCH. 4. FACTS OF THE CASE. 5. TRIBUNAL'S DECISION ON THE ISSUES INVOLVED BEFORE THE BENCH 6. ARE THERE ANY MINISTRY'S / BOARD'S INSTRUCTIONS INVOLVED (PLEASE GIVE THE REF. NO. CBEC DIGEST REF. NO. ETC.) 7. IS THERE ANY EARLIER ORDER OF THE TRIBUNAL AND ACTION TAKEN 8. IS THERE ANY SUPREME COURT'S JUDGEMENT OF THE ISSUES INVOLVED 9. WHETHER THE DECISION HAS A RECURRING EFFECT WITH RESPECT TO THE CURRENT TARIFF. 10. GROUNDS FOR PREFERRING APPEAL 11. REVENUE INVOLVED IN THE MATTER (DEMAND / REFUND). 12. WHETHER REVENUE IMPLICATION HAS RECURRING EFFECT OR NOT 13. WHETHER ANY REFUND ACCRUESAT A RESULT OF THE CESTATE ORDER. ANNEXURE - II FLOW CHART SHOWING PROCESS UNDERTAKEN FOR FILING APPEAL/SLP IN CASES RELATING TO EXCISE CUSTOMS RECOMMENDED TIME FRAME. Impugned Order issued by CESTATM Impugned Order - High Court Receipt of impugned order through post - Day Application for Certified copy - same day Preparation of proposal for challenging order in form of comments by concerned Commissionerate - 10 days Receipt of certified copy All case papers including proposal sent to CBEC in cases relating to rate of duty valuation papers, who takes decision to challenge order - 10 days Examination of SLP proposale against High Court orders by legal cell - 10 days Case paper sent to Central Agency Section for drafting Appeal / SLP Papers examined by Law Ministry - opinion forwarded to CAS which forwards the same to Law Officer for further opinion as to feasibility of challenging order - 7 days CAS makes file to panel counsel for drafting Appeal /SLP - 1 day Drafting Counsel returns draft appeal to CAS drafting Appeal / SLP - 7 days CAS forwards draft Appeal / SLP to CBEC/Legal Cell, M/o Finance for verring - 1 day Vetted drafts are returned to CAS for filling with marked annexures - 2 days Date of comunication of decision Preparation of paper book (typing /copying) by CAS - 5 days Result of hearing Appeal filed in SC - day 36 SLP filed in SC from CESTAT - day 46 SLP filed in SC from HC - day 35 Date of listing hearing