By
K. VIJAY KUMAR
MA; BL; MBA; B.Ed.
I, like many of my colleagues read ELT, for enhancing my knowledge levels in the difficult field, I am in . As such the ocean of case laws, often confusing and contradicting each other is a little too much for small minds like mine to fathom. Single bench, larger bench, regional bench are all benchmarks beyond us and ordinary people like me believe that the wise men who pass orders and the wiser men who argue cases and the still wiser men who decide cases at appellate levels are all extraordinarily brilliant scholars who can analyse and re analyse finer points of law which ordinary mortals find extremely difficult to even understand and we read with awe the judgements delivered in these higher portals of judicial debate, so sincerely brought to us fortnight after fortnight by ELT. There are so many judgements that even the fairly bulky issues of ELT were not able to carry all and so ELT is coming out with extra volumes to cover these unreported cases.
I was under the impression that when a case is taken to CEGAT or the High Courts and the Supreme Court, a lot of brainwork goes into the preparation of the appeal, analyzing various options of how to win the case, brainstorming sessions of senior officers to counter possible arguments from the other side. Then the best legal brains are hired and a highly surcharged case is argued and decided. May be it is done in private appeals. Apparently not in Government appeals. Most of our appeals are dismissed in Supreme Court for grave reasons like delay in filing appeal; failure to furnish certain papers or even for not depositing the printing charges! Going through the 1st November 2000 issue of ELT, really broke my heart. I could find at least six cases where the department lost its appeals/ cases in the CEGAT for silly reasons, not because we had no case, not because we could not argue, not because the other side was represented by wiser counsel, not because the law was not on our side, but due to our sheer incompetence; incompetence of a few officers. Have a look at the following cases reported in that one issue of ELT and how sadly and badly we lost.
2000(121) ELT 818(Trib) CCE, Mumbai – I v Swan Mills Ltd.
Commissioner's appeal is against the first two refund claims whereas in the statement of facts a reference has been made only to the third refund claim. Thus the statement made in the Form EA3 are different from the statements made in the appeal papers, in the statement of facts and grounds of appeal. It is clear that the authorisation given by the Commissioner is without application of mind. Appeal dismissed as not maintainable.
( We lost because, somebody failed in his elementary responsibility while drafting the appeal)
2000(121) ELT 813(Trib) CC, Surat – I v Special Prints Ltd.
An appeal was filed in form EA 3 for a customs case. The registry pointed out the lapse at the time of filing the appeal and in several later communications. At last the appeal was filed in form CA3, without proper verification and without filling certain columns. The tribunal pointed the defects in a number of communications, but they were not corrected. Result: appeal dismissed.
(Here it was the case of a wrong form, nothing wrong in it, but couldn't they be a little more careful at least after being pointed out by the Tribunal?)
2000(121) ELT 804(Trib) CCE&C, Surat v Gupta silk Mills
On scrutiny of the appeal, it was found that the appeal memo was defective. Notice was sent for correction with a caution that failure to correct would result in dismissal of the appeal.
WHAT HAPPENED? Corrections were not carried out and the appeal was dismissed.. In an earlier case the CEGAT had observed that the "authority vested under Section 35 B has to be used with circumspection and due application to the extent that even not mentioning of the words "not legal and proper" would result in dismissal of the
appeal……. Not paying attention to the basic requirement, the Collectors have shown utter negligence. And so, "Following regretfully our earlier decision, we dismiss the present appeal also."
2000(121) ELT 803(Trib) CCE, Mumbai – VI v JK Chemicals Ltd
" The scrutiny shows that the copies of the Order in Original were not enclosed herewith. Several memoranda were sent asking the Commissioner why the appeal should not be dismissed. Sri. Choubey, JDR also separately sent a letter …… We are amazed at the lack of knowledge displayed by the appellant Commissioner. In spite of several reminders and notice the Commissioner has not ensured the survival of the appeal. The appeal is dismissed." was the sad remark of the Tribunal. Should anything be added?
In all the above-mentioned cases, the department had gone in appeal to the CEGAT, but could not sustain the appeal because of ridiculous reasons. We obviously went in appeal, because there was a strong ground for appeal, as discovered by some of the senior most officers in the department; yet our appeals were not even presentable for admission. How much money and time must have been wasted on these appeals. With what results? And what about the issues involved and the duty lost? Had we not appealed, we could have avoided the slap from the Tribunal. But why do such things happen? And what is the corrective action? Does any body bother? As they say war is too serious a matter to be left to generals ……….
All our investigations, intelligence gatherings, high profile case detection, surveillance, audit and all related activities are meaningless if we are not able to take the battle to its legalistic conclusion and as a first step in that direction, we should at least know how to file an appeal. Unfortunately courts are not kind to our inefficiency and careless attitude.
But is it a correct attitude? I mean that of the courts. Should Government lose a case because, I am inefficient and careless?
While the examples show how OUR appeals failed, I was equally saddened by two orders where we lost because of our careless attitude at the preparation stage itself. In one case, the notice was sent to a wrong name and in another case a wrong rule/ section was quoted, so wrong that it traveled to another ACT!
2000(121) ELT 799(Trib) Supreme Industries v CC, Sheva.
Show cause Notice issued to SUPER INDUSTRIES
instead of SUPREME INDUSTRIES. Order set aside.
2000(121) ELT 747 (Trib) Steelco Gujarat Ltd v CCE, Vadodara.
Para 5 " When duty has been demanded under Rule 57 I of the Central Excise Rules, 1944, there is no question of imposition of penalty under Section 112(b) of the Customs Act.
As Parkinson would perhaps say the importance given to an item of work is inversely proportional to its worth and that is exactly what is happening with our adjudication and appeals.
EXCISE LAW TIMES – 01.02.2001 – A138
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