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National Litigation Policy - CBEC Sermons
Litigation Management - CBEC Instructions
(i) Each Commissioner under CBEC should maintain an updated list of cases pending in various Courts.
THEY ARE NOT EVEN FOLLOWING THE LANDMARK DECISIONS. EACH AND EVERY TIME ASK FOR CASE LAWS SOFT COPY. THEY ASK FOR THE COPY OF THE ORDERS ISSUED BY THEM FOR THE SAME ASSESSEE EARLIER.
(ii) Pending cases should be monitored weekly at the level of the Commissioner or Commissioner equivalent officer. Commissioner may, in turn, regularly apprise the Chief Commissioner on the important matters pending before the Courts, and their progress.
IN MOST OF THE TIME THE DR ARE COMING AND APPEARING THE CASES IN SURPRISE. NOT COMING WITH RELEVANT BOARD CIRCULARS AND DECISIONS, THOUGH IT IS MENTIONED IN THE APPEAL MEMORANDUM
(iii) There should be no justification in the ordinary course for the government to seek adjournments. Government Counsels should be advised to ensure that, adjournments are not sought as a matter of routine. Delay entails its own costs, and it also reflects poorly on the efficiency and ability of the Government to respond in time. The number of adjournments sought/obtained on behalf of the Government may be looked into and corrective action taken immediately.
THE DEPARTMENT NEED NOT TAKE ADJUOURNMENT, CESTAT MEMBER WILL GRANT BECAUSE THEY HAVE COME WITHOUT PREPARATION. IN ORDER TO HELP REVENUE THEY GIVE ADJOURNMENT, WHICH MAY PROLONG FOR ANOTHER YEARS TOGHETHER. CASE WHICH ARE CAN BE CLOSED AT THE THE TIME OF STAY HEARING, BASED ON SETTLED LITIGATION, THE DEPARTMENT WANTS ONLY STAY TO BE HEARD AND FINAL HEARING HAS TO COME ON THEIR DUE COURSE. IN THE MEAN WHILE PERIODICAL NOTICES WILL BE SEVICED AND ADD TO MORE AND MORE LITIGATION.
(iv) Every Commissionerate should have a nodal officer of adequate seniority, to act as a coordination point for all Court cases.
IT SEEMS THE DEPARTMENT IS NOT HAVING SUCH OFFICER SO FAR. EVEN IF ONE IS THERE WHAT HE WILL DO, EXCEPT ASK FOR ONE MORE SET OF APPEAL MEMORANDUM WITH ALL ITS ENCLOSURES. THE JUDICIAL AUTHORITY HAS TO WAIT FOR A FEED BACK FROM HIM ALSO.
(v) The Commissionerate should be in regular touch with all its Counsels and should advise them to use all means of communication including mobile phone applications like SMS, etc after every hearing for indicating the outcome/progress in the matter.
IT IS NOT ONE OR TWO CASES TO REMEMBER AND ACT OVER PHONE. THE COMMISSIONER CANNOT HAVE EVEN THE FILE REFERENCE WITH THE READILY. EVEN IF HE IS UPDATED WHAT HE IS GOING TO DO WITH THIS INFORMATION. ON THE OTHER HAND IT IS BETTER THE COUNSEL SHOULD BE GIVEN AUTHORITY TO UPDATE DEPARTMENTAL DATA MECHANIZIM IN EACH CASE AND THE COMMISSIONERS SHOULD HAVE ACCESS TO THE SYSTEM.
(vi) The Commissionerate may also regularly monitor the cases where the Government interest has not been adequately defended or which have been poorly handled and consequently lost, and send a report to the Board through Chief Commissioner for examination on whether any corrective action is required. The Board, if it considers necessary will send a report to the Ministry of Law and Justice.
MOST OF THE CASES LOST BECAUSE OF POOR DRAFTING OF THE SCN AND WRONG UNDERSTANDING OF THE FF. IN SOME CASES THE DEPARTMENT ISSUED TWO SCNs FOR THE SAME ISSUE FOR THE SAME PERIOD ON TWO CONTRADICTING GROUNDS. FOR AN ISSUE MORE THAN CORERS OF RUPEES, THE DRAFTING IS NOT DONE PROPERLY WITH FULL LEGAL KNOWLEDGE. EVERYWHERE IT IS SUPPRESSION OF FACTS AND IMPOSING PENALTY AND INTEREST. ACTUALLY THE DEPARTMENT WOULD HAVE SLEPT OVER YEARS WITH THE MATTER WHERE THE AUDIT HAVE INFORMED.
(vii) In all cases, where position stated in the past affidavits needs to be modified for various reasons, a review may quickly be undertaken to consider whether additional affidavit is required to be filed.
THE INSTRUCTION IS NOT IN POSITIVE APPROCH. 90% OF THE LITIGATIONS ARE INTERPRETATION BY THE FF WITHOUT CONSIDERING THE LEGAL STAND. IT IS BETTER THE DEPARTMENT BEFORE ISSUE OF AN SCN, THEY CAN CONSULT A SENIOUR INDEPENDENT ADVOCATES, GET HIS OPINION AND PROCEED TO ISSUE SCN.
Ramadoss Vaidyanathan
22/05/2015
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