Improving the quality of Departmental Representation before CESTAT & AAR - Central Excise - D.O.F. No. 390/Misc/411/07-JC

D.O.F. No. 390/Misc/411/07-JC Dated 7-1-2008 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Improving the quality of Departmental Representation before CESTAT AAR Improving the quality of Departmental representation upgrading the level thereof before the appellate authorities was committed by the Department, before the cabinet at the time of last cadre restructuring, as it has been the experience of the department that tax payers are represented in legal cases by well qualified highly paid representatives, mostly from globally reputed tax advisory firms and for the said upgradation, eleven posts of Commissioners were provided, to the CDR set up at various places. In the recent past, this issue has come up for adverse notice even by some of the benches of the Hon'ble Tribunal and also by the Hon'ble Finance Minister. Towards this end, discussions were held by the undersigned on some occasions, in the meetings with the CDR, Jt. CDRs, SDRs JDRs and instructions were issued, the last one being on 22-11-2007, pursuant to the meeting held with the CDR and the Jt. CDRs on 19-11-2007. 2. Subsequent to the said instructions, some of the Jt. CDRs have represented that the said instructions have resulted into an inequjtable distribution of work and an unduly large burden on the Shoulders of the Jt. CDRs alone, e.g. taking up of the first six cases of the list of regular cases every week by the Jt. CDRs (or first twelve cases where two Jt. CDRs are attached to a bench), in addition to all the cases above the specified limit, practically results Into all the cases being allotted to the Jt. CDRs. It is also brought to my notice that the system of listing of the cases before the Hon'ble Tribunal is also likely to undergo a change from the 1st January, 2008, from the present practice of a running cause list for regular matters to a daily list system. The matter has therefore, been re-examined and the following instructions are issued, in supersession of all the existing instructions on the issue. 3. All cases before the Authority for Advance Rulings (AAR) will be represented by the Jt. CDRs in the office of CDR, New Delhi, by rotation. 4. As far as representation of the Department before the CESTAT is concerned, the following type of cases will be taken up by the Joint CDRs : (i) Cases involving revenue of Rs. 3 Crores and more in Central Excise, Rs. 1 Crore and more in Customs and Rs. 50 lakh and more in Service Tax. For this purpose, total revenue, i.e. aggregate of the amount of duty/tax, penalty, Interest (wherever quantified in the order), fine etc. will be the criteria. (ii) All matters before the Larger Benches. However, in such cases, the Jt. CDRs may take the assistance, if necessary, of the SDR/JDR who represented the Department before the Referral Bench. (iii) All matters remanded by the Hon'ble Supreme Court or High Courts. (iv) All cases involving some important question of law, cases having recurring revenue implication and cases having all India ramifications. (v) Notwithstanding the above, the Jt. CDRs shall take not less than six cases per week. In case sufficient number of the above type of cases are not available on any particular day, they shall take up cases involving the highest revenue, preferably from amongst the cases not already allotted to any other DR. (vi) In addition to the above, each if the Jt. CDR shall take up at least one short matter every day, preferably the one involving the highest revenue or an important question of law. The short matter to be taken by the Jt. CDRs will be other than cases involving routine matters like Mention, Misc. applications, Extension of stay, Applications for condonation of delays, Applications for restoration of appeals etc. (vii) Any other case, as may be assigned by the CDR. (viii) On days when appearance before AAR or a Larger Bench of CESTAT is required, the Jt. CDRs may, if considered necessary, not take up other short or regular matters. (ix) To the extent possible there shall be equitable distribution of cases among all DRs posted to a bench. Appearance of the SDRs and JDRs before the CESTAT and the allotment of cases to them shall be regulated by the concerned Jt. CDR in-charge of the bench, in a manner so as to ensure equitable distribution of work amongst all the DRs, including him self/herself. While allotting the cases to the DRs, he shall keep in view the complexities of the case and the background, competence and experience of the officer being assigned the matter. However, in order to avoid duplication of efforts, if necessary, the DR who was assigned some or similar matter earlier, may continue to deal with the same on subsequent listings of the matter. 6. As far as Single Member Benches are concerned, the Jt. CDR in-charge shall preferably cause appearance before the Benches of the Hon'ble President or the Hon'ble Vice-President, if such benches are being held. The Jt. CDR incharge of the Single Member Bench also shall ensure equitable distribution of work amongst all the DRs, including himself/herself, and preferably take up cases involving higher amounts of revenue or complex in nature. 7. Whenever Circuit Benches of the Tribunal are being held, at least one Jt. CDR will accompany the team of PRs deputed to appear before the Circuit Bench and the norms as mentioned above will apply. 8. The respective Jt. CDRs shall hold regular meetings with all the SDRs and JDRs under their charge to discuss the cases assigned to them and also provide necessary guidance to them. 9. It has also come to notice that in some cases, the matters listed for hearing of stay applications are taken up for final disposal at that stage Itself. Normally, the extent of preparation made by the DR for a stay matter as not of the same level as is done for a matter listed for final hearing. It is also possible that considering the revenue implication, question of law and complexity involved in a case, at the stage of final hearing, the Jt. CDR incharge may decide to handle the matter himself or assign it to another DR. It is therefore, suggested that all the DRS may be advised to request the Benches not to take up the matters listed for hearing of the stay applications only for final hearing at that stage itself, pleading that the matter has been assigned to him/her only for arguing the stay application and may be assigned to another DR for final hearing, in this regard, Department is also supported in its stand by the Tribunal's decisions in the case of Govind Sharma v. Commissioner of Customs, Nhava Sheva [2007 (213) E.L.T. 585] Gold Plast v. Commissioner of Central Excise, Coimbatore [2003 (156) E.L.T. 524].