Circular No. 819/16/2005-CX

F.No.390/101/2005-JC

Government of India

Ministry of Finance

(Department of Revenue)

CENTRAL BOARD OF EXCISE & CUSTOMS

 5th / 13th  October, 2005

Sub:  Stream-lining departmental response to Supreme Court matters – instructions – Reg.

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 9.6.1998 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)/2002-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 Paper-book;

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 office 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.

Annexure – II

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