Circular No. 544/40/ 2000-CX
6-9-2000

F. No. 390/186/2000-JC

Government of India

Ministry of Finance (Department of Revenue)

Central Board of Excise & Customs, New Delhi

Subject :- Filing of appeals in the Supreme Court – instructions regarding forwarding of information on connected matters for proper defence of cases.

Please refer to the instructions issued by the Board from time to time on scrutiny of CEGAT’s/High Court's Orders by Commissioners and forwarding of proposals to the Board for filing of civil appeals/SLPs. It has been observed that one long standing problem faced by the Department is with regard to furnishing of up to date information on the status of connected matters relied upon in the impugned order/Deptt's appeal, to the Court at the time of final hearing. Recently the Learned A.G. and S.G. drew Finance Minister's attention to the fact that they had to face embarrassment in one matter, as information relating to the connected matter mentioned in the impugned order in our appeal could not be made available to the court at the time of hearing. In this case CEGAT had relied on a case without mentioning the citation and Commissioner had not forwarded copy of the relied upon order, which omission remained undetected till hearing, as such the advocate could not furnish either copy or status of the relied upon order to the Court. The Supreme Court has also directed the Court Registry to henceforth not admit our civil appeals/ SLPs unless full information in respect of connected matters is provided by the Department.

Member (L & J) had occasion to examine the whole procedure relating to filing of appeals in the Supreme Court, in this context, recently and it has been decided, that, in addition to the various other steps being taken at the level of the Board, a separate report on connected matters should be obtained with the appeal proposals. Commissioners should ensure that henceforth whenever they recommend filing of an appeal or SLP in the Supreme Court a separate report on connected matters is also sent in the enclosed proforma along with the appeal proposal.

Information on connected matters would mean details and status of the case/cases referred to and relied upon by the Tribunal or Court in the impugned order, as well as the judgments of Tribunal/High Courts or the Apex Court which are sought to be relied upon by the Department in support of their appeal. All Officers should first verify the correctness of the citations incorporated in the impugned orders, as well as applicability of these relied upon decisions to the case i.e., to pay, whether CEGAT has correctly applied that ratio of a particular decision to the case under examination. After ascertaining the correctness of the citation and applicability thereof it shall be the responsibility of the Commissioner sending the appeal proposal to ascertain full information about the status of the relied upon cases, i.e. to say whether any appeal was filed against the said order/orders, what was the outcome of such appeal/appeals etc. Commissioners should ascertain this information from the Commissioners concerned and furnish the same to the Board.

It has been decided that henceforth Board would also be sending a copy of the list of customs and central excise cases reflected in the Terminal List, issued by the Supreme Court Registry in July each year, to all Chief Commissioners this list reflects the position of cases that have already been admitted and are likely to be listed for hearing in the Supreme Court during the year. Chief Commissioners will coordinate with Commissioners in their jurisdiction to ensure that the concerned officers locate the case files pertaining to cases in their charge, go through them and ascertain the latest information in respect of relied upon/connected matters as well as any other development connected with the case, so that the Departmental counsels can be adequately briefed before the final hearing. A copy of the list has been forwarded to all Chief Commissioners vide Board's F. No. 390/194/2000-JC dated 30-8-2000. Chief Commissioners who have not received the list should immediately get in touch with Joint Secretary (Review) or Director (Review).

In addition to the Terminal List forwarded to the Chief Commissioners, Board has also forwarded a copy of list of matters pending in the Supreme Court as ascertained from the Supreme Court Registry, vide Board’s F. No. 390/195/2000-JC dated 30-8-2000 to all Chief Commissioners. All Chief Commissioners should correlate the position reflected in this list with their own lists of pending cases, and in case there are certain cases which appear to be pending as per their own list and do not figure in this list of cases obtained from the Supreme Court Registry, particulars of such cases (including Board's File No. if any) should be furnished at the earliest to the Joint Secretary (Legal) - in respect of appeals against High Court's orders, and to Joint Secretary (Review) regarding appeals against CEGAT's orders. In fact it has been noticed that the figures of pendency as per Supreme Courts records and the figures as reported in the MTR or to Legal Cell of the Board do not tally. They therefore have to be reconciled by December 2000, latest.

Board would henceforth be sending such lists twice a year to the Chief Commissioners and Commissioners concerned should ensure that their data is updated in accordance with pendency reflected in the Board's Office/S.C. Registry and discrepancies, if any, are reconciled as early as possible, if necessary by deputing officers to Delhi. They may also suggest case, which can be bunched together, or cases, which need to be, heard on priority basis in view of the importance of the matter or the revenue implications.

Please acknowledge receipt of this circular.

REPORT ON CONNECTED MATTERS

1.       Name of Commissionerate :

2.       Cause title, Order No. and date of impugned order :

3.       Give the details of cases relied upon by the CEGAT including cause title, citation, order No. & date ; Whether department filed appeal against that order and if so the CA or CAD No., Board's reference No. and the present status of our Civil Appeal.

(A)   First relied upon case

(i)       Cause title, citation, order No. and date etc.

(ii)      Commissionerate's name

(iii)     CA/CAD No., Board's reference No. etc.

(iv)     Present status of our CA

(B)                   Second relied upon case

(i)       Cause title, citation, order No. and date etc.

(ii)      Commissionerate's name

(iii)     CA/CAD No., Board's reference No. etc.

(iv)     Present status of our CA

(C)                  Third relied upon case

(i)       Cause title, citation, order No. and date etc.

(ii)      Commissionerate's name

(iii)     CA/CAD No., Board's reference No. etc.

(iv)     Present status of our CA

(Please attach extra sheets in case the CEGAT has relied upon more than three orders)

(In case reference application had been filed against the relied upon orders, the details thereof may be indicated and copy of reference order if any may please be annexed)

4.       In case the matters as mentioned :        

           at Sl. No. 3 above; have been decided,

           whether the same has been accepted by

           the Department.

5.       The details/citation of cases relied upon :

           by the Department while recommending

           filing of appeal in the present case.

(i)

(ii)

(iii)

6.       Whether the matter relied upon in favour :

           of the Department as mentioned at Sl No. 5

           above has attained finality; and if not, whether

           the same has been appealed against CA/CAD

           No. assigned.

(i)

(ii)

(iii)

7.       The present position/status of the CA/CAD No. in :

           respect of the matter mentioned at Sl. No. 5 above.

(i)

(ii)

(iii)

Commissioner of Customs & Central Excise