F.No.390/Misc./163/2010-JC
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
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New Delhi 20th
October 2010
INSTRUCTION
To,
1.
All
Chief Commissioners and Directors General under the Central Board of Excise and
Customs.
2.
CDR,
Customs, Excise & Service Tax Appellate Tribunal.
3.
All
Commissioners of Customs/Central Excise/Service Tax/All Joint Chief
Departmental Representatives/Commissioners, Directorate of Legal Affairs.
4.
<webmaster.cbec@icegate.gov.in>
Sub:- Reduction
of Government litigations - providing monetary limits for filing appeals by the
Department before CESTAT and High Courts - Regarding
The
National Litigation Policy formulated by the Government of India aims to reduce
Government litigation so that the Government ceases to be a compulsive
litigant. The purpose underlying this Policy is to ensure that valuable time of
the Courts is spent in resolving pending cases and in bringing down the average
pendency time in the Courts. To achieve this, the Government should become an
“efficient” and “responsible” litigant.
2. Accordingly the Policy lays down, inter alia, that in Revenue matters appeal shall
not be filed if the amount involved is not very high and is less than the
monetary limit fixed by the Revenue authorities. It also states that appeals
shall not be filed if the matter is covered by a series of judgments of the
Tribunal and the High Courts which have held the field and have not been
challenged in the Supreme Court. The Policy also lays
down that no appeal shall be filed where the assessee has acted in accordance
with the long standing practice and also merely because of change of opinion on
the part of the jurisdictional officers.
3. The Hon’ble Bombay High Court in its
order dated 21.06.2010 in the case of CCE Vs Techno Economic Services Pvt. Ltd.
[2010(255) ELT 526 (Bombay)] had desired that CBEC consider issuing circular,
on the lines of circulars issued by the CBDT, so as to reduce litigations
arising out of indirect tax litigations.
4. In respect of appeals filed in the
Supreme Court, the proposals are examined by the Board before filing. The Civil
Appeals on matters relating to valuation and classification are filed under
Section 35L(b) of the Central Excise Act,1944 and Section 130E(b) of the Customs
Act, 1962. Such appeals are being filed after careful scrutiny by the Board and
while examining, the amount involved is kept in mind. On all issues other than those
relating to valuation and classification, SLPs are filed by the Board after
obtaining the opinion of the Ld. Law officer from the Ministry of Law. However,
it may be mentioned that Board had issued Instruction vide DO F No.
390/170/92-JC dated 13.1.93 as modified by D.O. of even number dated 27.10.1993
advising the field formations that appeals should not be filed in the Supreme
Court in cases where the duty involved is Rs 5 Lakhs
or less. The said instruction was issued in the light of observation of the
Supreme Court as conveyed by the then Ld Attorney General and was reiterated
vide various Circulars issued by the Board from time to time. It is, therefore,
desired that the above instruction must be kept in mind while sending proposals
to the Board for filing civil appeal or SLP in the Supreme Court.
5. The Board has decided that appeals in
the Tribunal shall not be filed where the duty involved or the total revenue
including fine and penalty is Rs 1 Lakh and below. Similarly in the case of High Courts appeals
should not be filed in cases where the duty involved or total revenue including
fine or penalty is Rs 2 lakhs and below. While deciding the thresholds mentioned
above, the duty involved shall be the decisive element. For example, in a case
involving duty of Rs 1 lakh with mandatory penalty of
Rs 1 lakh besides any other penalty imposed under the
relevant provisions of Law, no appeal shall henceforth be filed in the Tribunal
as the duty involved is within the monetary limit of Rs 1 lakh. Similarly, if the duty involved in a case is
Rs 2 lakhs with equal mandatory penalty and any other
penalty imposed under the Law in force at the relevant time, no appeal shall be
filed before the High Court.
6. Adverse judgments relating to the
following should be contested irrespective of the amount involved:
a) Where the constitutional validity of the
provisions of an Act or Rule is under challenge.
b) Where notification/instruction/order or
Circular has been held illegal or ultra vires.
c) Where audit objection on the issue involved in
a case has been accepted by the Department
7. It may also be noted that, wherever it
is decided not to file appeal in pursuance of these instructions, which are
aimed solely at reducing Government litigation, such cases shall not have any
precedent value. In such cases,
Commissioners should specifically record that “even though the decision is not
acceptable, appeal is not being filed as the amount involved is less than the
monetary limit prescribed by the Board.”
Further, in such cases, there will be no presumption that the Department
has acquiesced in the decision on the disputed issues in the case of same
assessee or in case of any other assessees, if the amount involved exceeds the
monetary limits. Thus, in case any prior
order is being cited on facts and law, it must be checked whether such order(s)
were accepted only on account of the monetary limit before following them in
the name of judicial discipline.
8. In respect of an order where it is
decided not to file appeal in pursuance of these instructions, a data base
needs to be created so that all the Commissionerates
are made aware of the orders that are accepted solely on the ground that the
revenue involved is below the threshold prescribed herein and which should not
be taken as having precedent value. The details of such orders in respect of
CESTAT and the High Courts is required to be furnished by the Zonal Chief
Commissioners in Proforma enclosed (Annexure III E
& Annexure III F) which should form part of the Monthly Technical Report
being sent to the Directorate of Legal Affairs for posting on the departmental
website. These Annexures III E and
9. The above instructions of the Board must
be adhered to strictly for all appeals filed on or after 1.11.2010.
10. Instruction issued vide F No. 275/55/CX
8A dated 10.11.2008 is hereby rescinded.
11. Hindi version follows.
(Sunil K Sinha)
Director
(Judicial & Review)
Click here for: Proforma
(Annexure III E & Annexure III F).
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