Circular No. 332/48/97-Central Excise Dated 9/9/1997

Circular No. 332/48/97-Central Excise

dated 9/9/97

F.No. 390/107/97-JC
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs, New Delhi

Subject: Filing of Civil Appeals against CEGAT Orders involving rate of duty and valuation Review Scrutiny in CBEC- instructions regarding.

Kind attention in invited to Board”s instructions as contained in Circular No. 313/29/97-CX (F.No. 390/107/97-JC) dated 6th May, 1997 on the above subject.

2. It is observed that Commissioners are not yet sending the proposals for filing of Civil Appeals within 10 days the receipt of the certified copy of the CEGAT order in their offices. In some of the cases the proposals have been received after considerable delay, making them as goods as infructuous. The Board has viewed the delay in such cases with concern and has asked the concerned Chief Commissioners to fix responsibility for the delay for appropriate action against the concerned officers.

3. The Law Ministry in its letter no. 34(6)-97-IWSU dated 12.5.97 has also emphasised the need for taking adequate measures in order that the SLPs/ appeals are filed before the Hon”ble Court well within the prescribed time limit. A copy of this reference is enclosed for ready reference.

4. Further, Additional Solicitor General has recently emphasised that considering the time required by the CAS and Law Officers in drafting and finalising the Civil Appeals, the Board should normally send its proposals for Civil appeals within 20 days of the receipt of the certified copy of the CEGAT Order in the Commissionerate.

5. The Board, therefore, again emphasised the need for ensuring receipt of the proposals for civil Appeals from the concerned Commissioners within 10 days from the date of receipt of the certified copies of the CEGAT Order in a Commissionerate. The exercise for examining the CEGAT order in the Commissioner”s Office can be undertaken even before the receipt of the certified copy of the CEGAT Order.

6. Further, it has been observed that there in considerable time taken in obtaining RMS and Paper Books in those cases where Board agrees with the proposal of a commissioner to file a CA in SC. In those cases where CEGAT  judgement is by Regional Benches, getting RMS and Paper Books from Mumbai, Calcutta and Madras takes very substantial time and so is the case in regard to Special Bench at Delhi. With a view to streamline the procedure in this regard and to avoid delays, the Board, therefore, has decided that the following procedure should be observed scrupulously

(a) In respect of CEGAT orders pertaining to Regional Benches, the Commissioner concerned should collect the RMS/Paper Books and send the same to Board”s office alongwith the recommendation for filing an appeal. In other words, on proposal for filing CA should be sent now without the relevant RMS/ Paper Book;

(b) In respect of CEGAT Orders pertaining to Special Benches at New Delhi, the Commissioner concerned should send the proposal to Board and simultaneously take up the matter with CDR, New delhi to furnish RMS Paper Book in such case directly to Board under intimation to him.

(c) The CDR/JCDR at New Delhi must ensure immediate submission of RMS/ Paper Book in all such cases by special messengers within 24 hours of the receipt of reference from the Commissions.

7. The above instructions come into force with immediate effect. All CEGAT Orders now received in the Commissioner”s office should be processed and proposal for Civil Appeal normally be submitted accordingly to the Board.

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Office Memorandum

Subject: Refusal of condonation of delay in filing of SLP”s / Appeals

The undersigned is directed to refer to the l.d Additional Solicitor General (ASC)”s D.O. Letter of 27th March, 1997 addressed to the Additional Secretary, Department of Legal Affairs and state that almost all the Hon”ble Judges of the Supreme Court are taking a very strict view in the matter of condonation of delay in filing of SLP”s / Appeals.

Recently there have been instances where the Hon”ble judges have dismissed the matters on the grounds of delay, irrespective of the consideration of the petitioner being the Govt. or a private party. There have also been instances of refusal by the Hon”ble Court to condone the delay in filing of SLP”s/ Appeals.

The Hon”ble judges have even remarked in some matters that they would consider an application for condonation of delay, if the Govt. has initiated action to identify the Officers responsible for the delay and if Departmental action has been initiated against such officials.

The reason behind these observation is that the interest of Govt. of India should not be allowed to suffer on account of negligence or malafide inaction of the officials concerned. A mere application for condonation of delay making a statement that the files have to move from table to table and consequently delay occurred and listing a few dates in not being accepted by the Hon”ble Court.

In view of this line of thinking of the Hon”ble Court, and the specific observations of the Hon”ble judges in some matters, filling of SLP”s/ Appeals after the prescribed time limit will be very risky and the chances of the officials responsible for delay being made to answer and bear the consequences will be great.

All the Ministries and Department of Govt. of India particularly the Ministry of Finance are as such requested to take adequate measures in order that the SLP”s/ Appeals are filed before the Hon”ble Court well with-in the prescribed time limit.