No Appeals to Tribunal for < Rs 1 Lakh
Cases
High Court Limit < Rs 2 Lakh
[Ref:
F.No.390/Misc./163/2010-JC dated 20th October 2010]
Sub:
Reduction of Government litigations - providing monetary limits for filing
appeals by the Department before CESTAT and High Courts.
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.
Proforma-III
E
Part
A
List
of CESTAT Orders Accepted on Account of Low Revenue
(1) SNo.:
(2) Zone:
(3) Commissionerate:
(4) CESTAT Order No. & Date:
(5) Appeal No.:
(6) Cause Title:
(7) Issue Involved:
(8) Amount Involved:
(9) Date of Acceptance:
Part B
List of CESTAT Orders Accepted for Reasons other than
Low Revenue
(1) SNo.:
(2) Zone:
(3) Commissionerate:
(4) CESTAT Order No. & Date:
(5) Appeal No.:
(6) Cause Title:
(7) Issue Involved:
(8) Amount Involved:
(9) Date of Acceptance:
(10) Reasons for acceptance:
Proforma-III
F
Part A
List of High Court Order/Judgment Accepted on Account
of Low Revenue
(1) SNo.:
(2) Zone:
(3) Commissionerate:
(4) High Court Order No. & Date:
Appeal
5a Type*:
5b No.:
(6) Cause Title:
(7) Issue Involved:
(8) Amount Involved:
(9) Date of Acceptance:
Part B
List of High Court Orders/Judgment Accepted for Reasons
other than Low Revenue
(1) SNo.:
(2) Zone:
(3) Commissionerate:
(4) High Court Order No. & Date:
Appeal
5a Type*:
5b No.:
(6) Cause Title:
(7) Issue Involved:
(8) Amount Involved:
(9) Date of Acceptance:
(10) Reasons for acceptance: