Legal Wing FBR

Improvement In Working - Adjudication & Appeal Matters

• Pendency and disposal position of adjudication and appeals is being closely monitored. Reasons for undue delay in disposal in each case will be called from the concerned offices.

• Collectors have been asked that, as a matter of policy decision, Adjudication Officers should not be given additional assignments.

• Collectors have also been asked that, in case of major pendency in their respective Collectorates, possibility of assigning adjudication cases to other officers for liquidating the pendency be examined.

• Collectors have been asked that Adjudicating Officers should decide cases within time limitations and invariably send copies of Orders-in-Original to Board for perusal and record.

• Substantial pendency of Appeals in Tribunals and High Courts, especially in Karachi & Lahore has been observed. Strategy is being evolved to bring further positive improvements in disposal of such pendency of Appeals .

• Fixation of cases on issue basis has been taken up for expeditious disposal. Working at Appellate Tribunals is being coordinated. The term of coordination advocates at Karachi & Lahore has been extended.

• Commissioners/Collectors have been asked that their Law Officers should obtain copies of cause lists on regular basis. They should also visit High Courts Benches daily to see what cases have been decided and ensure that applications for issuance of copies of judgments are made by department or by nominated advocates/counsels on the same day.

• Commissioners/Collectors have also been asked that their Law Officers should also provide assistance to nominated advocates/counsels in presentation of cases before the Courts. They should also provide necessary assistance and also oversee preparedness of legal advisors and their presentation qualities before the courts.

• Commissioners/Collectors have been asked to ensure that their Law Officers designated for this purpose perform their duty vigilantly and diligently and submit weekly reports to them about proceedings in the cases

• Commissioners/Collectors have been asked to provide names/designations of their Law Officers to Board for record and also to monitor their performance properly.

• However, Commissioners/Collectors have been advised that the basic duty remains that of Legal Counsel(s) or nominated advocate(s), who has/have to perform his/their job by filing application(s) for issuance of copy(ies) of judgment(s) in time.

• They have also been advised that where any laxity occurs, the respective Law Officer should remind concerned counsel(s)/advocate(s) and play his role for smooth and effective working, ensuring that no Judgment or any legal issue gets barred by time.

EXTENSION OF TIME PERIOD/CHANGE IN JURISDICTION IN SPECIFIC CASES (INDIRECT TAXES)

• The Board, in light of its inherent powers conferred under section 74 of the Sales Tax Act, 1990 and Section 179(4) of the Customs, 1969, has granted the requested extension/change in jurisdiction of specified cases, as per the details given below, by the respective Collectors (Adjudications/Appeals) in the current calendar year:
   

  • 1110 cases relating to extension in time for adjudication were received and disposed of. This includes 1026 cases of Collector (Appeals), Faisalabad.

  • 10 cases relating to change in jurisdiction were received and disposed of.

  • 69 cases seeking permission for filing of appeals in Courts were received and disposed of.

  • Field formations advised that in such cases, while passing adjudication orders, contents of the order issued by the Board relating to extension in time/ change in jurisdiction may be reproduced in the footnote of every particular adjudication order to avoid litigation.

  • They have also been advised to ensure that all such cases are properly monitored and expeditiously disposed of to recover struck-up revenues by June, 2007.

FILING OF APPEAL AS AGGRIEVED PERSON (INDIRECT TAXES)

• While filing appeals as aggrieved persons, Customs officers normally make adjudicating officers or in case of second appeal, Collector (Appeals) as sole respondent without realizing that such officers could only be made proforma respondents and not the necessary party.
• The necessary party is the person who benefits from decisions of adjudicating officers or Collector (Appeals), as the case may be, against which appeals are preferred.
• If that person is not made the necessary party, the appeal is bound to fail. There are decisions of Superior Courts to this effect. Collectors should take notice of such lapses.

Filing Of Appeal With Appellate Tribunal

• Appeals filed by Collectors with Appellate Tribunal under Section 194A of Customs Act, 1969 and Section 47 of Sales Tax Act, 1990 are signed by officers lower in rank.

• Even affidavits certifying correctness of contents of appeals are also not signed by Collectors.

• This creates a doubt as to competency of the person signing memoranda of appeals and affidavits.

• Collectors should sign affidavits themselves being appellants as failure to sign affidavits on their part would renders appeals liable to be dismissed.

• Collectors may also authorize their specific subordinate officers in writing to file appeals on their behalf

Rejection of c.p. Appeals on the point of limitation

• Nominated advocates/counsels some times fail to apply for certified copy(ies) of Judgment(s) in time thus, invoking time limitation provisions and thereby rejection of CPsLA on technical grounds.

• Time limitation is counted from date of announcement of Judgment or issuance of short order of full Judgment or dismissal of appeal.

• Commissioners/Collectors have been advised to ask the nominated advocate(s)/counsel(s) to file application(s) for issuance of copy(ies) of judgment(s) on the same day of its announcement.

• Time period available for filing CPLA is 60 days from date of such announcement and for filing a review is 90 days.

• Commissioners/Collectors have been advised to direct their respective Law Officers to ensure that application(s) for issuance of copy(ies) of judgment(s) is/are moved by nominated advocate(s)/counsel(s), in time.