Strict Compliance of Limitation while filing appeals/ Petitions by Government

Strict Compliance of Limitation while filing appeals_ Petitions by Government

1. Instruction Issued to streamline the department litigations

Legal Cell of Central Board of Indirect Taxes and Customs issued Instructions No. 275/65/2013-CX.8A(Pt.) dated 23rd  December, 2020 wherein instructions were issued to streamlining the processing of department ligitations before courts & Tribunals.

Vide instructions, CBIC highlighted  that detailed procedures are provided for processing of Department ligitations. However, such procedures are not being followed seriously and therefore, delayed departmental appeals/petitions are filed before the Hon’ble Courts. Thus, all Chief Commissioners/Director Generals were directed to adhere following procedure:

  1. Time-lines provided for filing appeal should be adhered strictly.
  2. All orders/judgements should be put up to the Principle Commissioner/Principle ADGs/Commissioner/AGD at the time of receipt only. No order/judgement should be directly submitted to the section. Order/Judgement should be examined at this stage only and prima facie view should be developed that whether appeal/petitioner is required to be filed. Further, necessary instructions will be issued to the concerned section for submitting the file within prescribed time limit.
  3. All order/judgement shall remain under “Special Watch” of the principal Commissioner/ADG/Commissioner/ADG till the time final decision is taken and appeal is filed.
  4. Appeal should be filed within the time limit prescribed.
  5. Order/Judgments in favour of revenue should be communicated to the legal cell, CBIC so that same may be considered for the purpose of circulation.
  6. Sometimes it has been observed that concerned officers cast the onus on the standing counsel for belated actions. Therefore, apart from regular connection with standing counsel, the concerned officer should witness the high court proceedings, specially on the important cases. Parallely, website of the respective High Court authority can be checked on daily basis to ascertain the status of the case.

 

2. Circular issued to directed Strict compliance to Limitation while filing Appeals/Petitions before Courts/ Tribunal

As per circular No. 1077/01/2021, issued by Ministry of Finance, CBIC has observed that despite regular instructions being issued about regular file of appeal/petitioner, appeals/ petitions are being filed before High Courts and Supreme Court belatedly, highlighting no extra-ordinary circumstances while filing Condonation of Delay Applications.

Therefore, CBIC has clarified following points:

  1. Hon’ble Supreme Court has been continuously observing this practise of filing appeal after inordinate delay and consequently imposing costs on the petitioners.  In a matter of Union of India v. Jitendra in SLP (crl.) Dairy No. 24676/2020, Hon’ble Apex Court noted:
  • Hon’ble Court has repeatedly denied the practice of departmental authorities who are coming before this Court after inordinate delays assuming as if the Law of Limitation does not apply to them.
  • Repeatedly, reliance is placed on the judgments of vintage when technology was not easily available.
  • No reference is made to the judgment subsequently delivered in the matter of Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. –(2012) 3 SCC 563 wherein this matter was dealt and it was held that consideration of the ability of the Government to file appeal in time would have to be dealt with in the context of the technology now available and merely shuffling files from one table to the other would no more be a sufficient reason.
  • Hon’ble Court also categorized such cases as “certificate cases” and also mentioned that mere object of filing such cases is to obtain a certificate of dismissal from the Supreme Court to put an end to the issue and thus, record that nothing could be done because the highest Court has dismissed the appeal.
  • It is a completion of formality endeavoured to save the officers who may be in default in following the appropriate legal process in time.
  • Despite repeated orders by Hon’ble court, very little is done at least in taking action against concerned officers who sit on files and do nothing. Department authorities are pursuing that this Court will condone the delay for the asking.
  • Hon’ble Court refused to follow such a practise and final cost was imposed on the petitioner.
  1. Idententical decision was also taken in  the matter of State of Madhya Pradesh v. Bherulal in SLP (C) Dy No. 9217/2020 and Municipal Corporation of Greater Mumbai & Ors. v. Uday N. Murdukar in SLP (C) Dy No. 9228/2020.
  2. Further, observation of Hon’ble Supreme Court in the case of Office of the Chief Post General & Ors. v. Living Media India Ltd in Civil Appeal No. 2474-2475 of 2012 is as Hon’ble Apex Court held that:
  • The petitioner concerned is well aware of issues involved including the prescribed period of limitation for taking up matter by filing Special Leave Petition.
  • Hon’be Court held that Department authorities cannot claim that they have a separate period of limitation when the department is having competent persons who are familiar with the court proceedings. The law of limitation undoubtedly binds everybody including the Government.
  • Hon’ble Court questioned that why condontation should be granted merely because the Government or a wing of the Government is a party before us.
  • Though, in a matter of condonation of delay when there was no gross negligence or deliberate inaction, a liberal concession has to be adopted to advance substantial justice. However, the Department cannot take advantage of various earlier decisions.
  • The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
  • Therefore, Hon’ble Court held that it is to be informed to every governmental body and their related bodies that unless they have a reasonable and acceptable excuse for delay and there were bonafide efforts were made, hon’ble court will not except the explanation such as file is pending for several months/years due to considerable degree of procedural red-tape in the process.
  • It is expected from government authorities that they should perform their duties with diligence and commitment. Condonation in delay is an exception and should not be used like it is an anticipated benefit for government departments.
  • Hon’ble court conveyed that law protects everyone in the same shelter and should not be the churn for the benefit of few.
  • Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates and therefore, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
  1. Therefore, all field formations are directed to file the appeal/petitioner  within the time limit given vide Instruction vide F.No. 1080/DLA/50/Tech/Monitoring/SLPs-Appeals/16 dated 01.06.2017.
  2. All field officers should discourage the practice of filing Condonation of Delay Application in a mechanical fashion, without attributing cogent reasons,
  3. The jurisdictional officers should personally monitor that appeals/petitions are filed on time in the interests of Revenue.
  4. Any appeal/petition dismissed, solely on the grounds of limitation, may be thoroughly examined and corrective steps may be taken, including disciplinary action.
  5. Further, petitions/appeals filed before Hon’ble High Court, which are having all-India complications and would require policy Input, should be immediately brought to the notice of policy section of the Board along with the Commissioner (Legal).

DISCLAIMER: The views expressed are strictly of the author and VJM & Associates LLP. The contents of this article are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the author nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this article nor for any actions taken in reliance thereon.

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