Litigation means ultimate legal method for settling controversies or disputes between and among persons, organizations, and the State.
In litigation process, a case is brought before a court of law/ Tribunal/ Adjudicating Authorities suitably empowered
(having the jurisdiction) to hear the case, by the parties involved for resolution (the judgment/Order).
KPS Legal provides litigation service in the areas of Customs, Excise, Service Tax, VAT/CST, GST(when introduced), FTP & DGFT matters,
other state taxes, International Trade and Direct Tax. KPS Legal has in-house expert team of professionals who have handled a number of
cases and industry matters and therefore now indirect tax litigation service of KPS Legal has become a very well known brand among the
industry. The unique mix of the peoples’ background at KPS Legal makes the firm distinct where our cross functional experience helps us to
approach the problems in innovative ways and put forth exemplary arguments consulting and execution.
1) Supreme Court Of India :-
came into existence on 26th January, 1950 and is located on Tilak Marg, New Delhi. On the 28th of January,
1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being. The inauguration took place in the
Chamber of Princes in the Parliament building which also housed India's Parliament, consisting of the Council of States and the House of the
People. It was here, in this Chamber of Princes, which the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be
the home of the Supreme Court for years that were to follow until the Supreme Court acquired its own present premises.
The Supreme Court of India is the highest judicial forum and final court of appeal under the Constitution of India, the highest constitutional
court, with the power of constitutional review. It comprises the Chief Justice of India and 30 other judges. It has original, appellate and
advisory jurisdictions. As the final court of appeal of the country, it takes up appeals primarily against verdicts of the High Courts of various
States of the Union and other courts and tribunals.
The Supreme Court has extensive original jurisdiction for the protection of fundamental rights of citizens. It also acts as the court to
settle disputes between various governments in the country. As an advisory court, it hears matters which may specifically be referred to it
under the Constitution by the President of India. It also may take cognizance of matters on its own (or 'suo moto'), without anyone drawing
its attention. It was first set up in Calcutta for administration of justice. The law declared by the Supreme Court becomes binding on all
courts within India.
The Constitution of India under Article 145 empowers the Supreme Court to frame its own rules for regulating the practice and procedure of
the Court as and when required (with the approval of the President of India). Accordingly, "Supreme Court Rules, 1950" were framed. The
1950 Rules were replaced by the Supreme Court Rules, 1966. In 2014, Supreme Court notified the Supreme Court Rules, 2013 replacing the 1966
Rules effective from 19 August 2014.
2) High Court:-
There are 24 High Courts at the state and union territory level of India which, together with the Supreme Court of India at the national
level, comprise the country's judicial system. Each High Court has jurisdiction over a state, a union territory or a group of states and
union territories. Below the High Courts is a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and
various other district courts. High Courts are instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian
Constitution.
The High Courts are the principal civil courts of original jurisdiction in each state and union territory. However, a High Court exercises its
original civil and criminal jurisdiction only if the subordinate courts are not authorized by law to try such matters for lack of pecuniary,
territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated specifically in a state or
federal law.
However, the work of most High Courts primarily consists of appeals from lower courts and writ petitions in terms of Article 226 of the
constitution. Writ jurisdiction is also original jurisdiction of High Court. Under Article 141 of the Constitution, all courts in India
(which includes High Courts) are bound by the judgments and orders of the Supreme Court of India by precedence.
Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state.
High Courts are headed by a Chief Justice. The number of judges in a court is decided by dividing the average institution of main cases
during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court,
whichever is higher.
The Kolkata High Court is the oldest High Court in the country, established on 2 July 1862. High Courts that handle a large number of cases
of a particular region have permanent benches established there. Benches are also present in states which come under the jurisdiction of a
court outside its territorial limits.
3) CMM Court:-
Courts of Metropolitan Magistrate are at the second lowest level of the Criminal Court structure in India. According to the Section 16 of the
Criminal Procedure Code, 1973 (CrPc), a Court of Magistrate may be established by the State Government in consultation with the High Court of
the respective state at such places in every metropolitan area and in any number by a notification. It has jurisdiction throughout such
metropolitan area.
A Metropolitan Magistrate is a first class magistrate under the general control of the Sessions Judge and is subordinate to the Chief
Metropolitan Magistrate.
According to Section 29 of the CrPc., a Metropolitan Magistrate may pass a sentence of imprisonment for a term not exceeding three
years, or of fine not exceeding ten thousand rupees.
4) Customs, Excise and Service Tax Appellate Tribunal* (CESTAT):-
was formerly known as Customs, Excise & Gold (Control) Appellate Tribunal
(in short CEGAT), was constituted on the 11th October 1982. Wherever there are no specific orders.CESTAT was created to provide an independent
forum to hear the appeals against orders and decisions passed by the Commissioners of Customs and Excise under the Customs Act, 1962, Central
Excise Act, 1944, Finance Act 94 relating to Service Tax. The Tribunal is also empowered to hear the appeals against orders passed by the
designated authority with regard to Anti Dumping Duties under the Customs Tariff Act, 1975. The sanctioned strength of the Members
(including President and two Vice Presidents) is 21. It has 3 benches in Delhi and 4 benches in Mumbai and one each at Kolkata, Chennai and
Bangalore. Each Bench consists of a Judicial Member and a Technical Member. With a view to have expeditious disposal of small cases, a Bench
of Single Member deals with the matters not exceeding Rs.10 Lakhs is also constituted. Except in the matters relating to classification and
valuation of goods, the Tribunal is the final Appellate Authority though a reference to the High Court can be made on a question of Law. In
classification and valuation matters, the appeal against the order of the Tribunal lies only to the Hon’ble Supreme Court.
The Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and *Service Tax Appellate Tribunal consisting
of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate
Tribunal by Section 129 of the Customs Act read with 35B of the Central Excise Act, 1944 and as made applicable to the Service Tax matters
5) Settlement Commission:-
The object behind the setting up the Settlement Commission (hereinafter referred as the Commission) is to create a channel whereby tax
disputes can be settled expeditiously and in a spirit of conciliation rather than prolonging them through adversarial attitude.
The Commission is not designed to provide an escape route for tax evaders. It is, infact, designed to provide a balanced resolution of tax
disputes with a view to avoid lengthy litigation which helps neither the department nor the member of the Trade and Industry. In the
proceedings before the Commission, there are no adversaries but only parties to the Settlement. Any assessee can make an application in such
form and in such manner as may be prescribed by the Commission and containing “Full & True” disclosure of his duty liability which has not
been disclosed before the proper officer having jurisdiction, the manner in which such liability has been derived, the additional amount of
Customs or Excise Duty or Service Tax accepted to be payable by him as also the particulars of excisable goods or import or export goods or
taxable services in respect of which he admits short levy.
The Settlement Commission has powers to grant immunity from prosecution for any offence under the Central Excise Act, the Customs Act or under
the Indian Penal Code or under any other Central Act for the time being in force in respect of the case covered by the Settlement
Commission.
The Commission also has powers to grant immunity either wholly or in part from the imposition of any penalty and fine under the Central
Excise Act or the Customs Act, as the case may be in respect of the case covered by the Settlement Commission.
The proceedings before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228,
and for the purposes of Section 196 of the Indian Penal Code.
The following category of cases are excluded from the purview of the Settlement Commission
-Cases relating to Customs duty where no Bill of Entry or Shipping Bill, as the case may be, has been filed.
-Cases relating to Central Excise duty where no monthly returns showing production, clearances and Central Excise
Duty paid in the prescribed manner has been filed.
-Cases relating to Service Tax where no return has been filed.
-Cases where no Show Cause Notice has been issued to the applicant.
-Cases where the additional amount of Central Excise Duty/Customs Duty/Service Tax accepted by the applicant in his application does not exceed `3 lakh.
-Cases involving interpretation of the classification of goods under the Central Excise Tariff Act, 1985 or the Customs Tariff Act, 1975.
-Customs, Central Excise and Service Tax cases which are pending with the Appellate Tribunal or with any court at the time of making the application.
-Cases involving seizure of goods or documents under the Customs Act or the Central Excises Act, as the case may be before the expiry of 180 days from the date of the seizure.
-Customs cases to which section 123 of the Customs Act applies or cases under the NDPS Act.
6) Commissioner (Appeals):-
Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals)
within sixty days from the date of the communication to him of such decision or order.
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of
sixty days, allow it to be presented within a further period of thirty days.
The Provision of Appeals before the Commissioner (Appeals) are covered by the Section 128 of the Customs Act, 1962 and Section 35A of the Central Excise Act, 1944 and Section
85 of the Central Excise Act, 1944 for the Service Tax matters.
6) Adjudicating Authorities:-
means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted
under the Central Boards of Revenue Act, 1963 (54 of 1963), Commissioner of Central Excise (Appeals) or Appellate Tribunal;
Section 122 of the Customs Act, 1962 (‘Act’ for short) provides for adjudication of confiscation and penalties imposed under
Chapter XIV of the Act. The following Officers are empowered to adjudicate confiscation or penalty-
• Principal Commissioner of Customs/Commissioner of Customs/Joint Commissioner of Customs – Without limit;
• Assistant Commissioner of Customs/Deputy Commissioner of Customs – If the value of the goods liable for
confiscation does not exceed ? 5 lakhs (with effect from 01.04.2012) ;
• Gazetted Officer of Customs lower in rank than the Assistant Commissioner of Customs/Deputy Commissioner of
Customs – If the value of the goods liable for confiscation does not exceed ? 50,000/- (with effect from 01.04.2012).
Adjudication of the case where anything is liable to confiscation or any person is liable to penalty has to be done by
Officers specified in section 33 of the Central Excise Act, 1944.
• Adjudication in Service Tax cases : Section 83A of Central Excise Act, 1944.
• Recovery of Service tax not levied or paid or short levied or short paid or erroneously refunded: Section 73 of Central Excise Act, 1944.
7) CAT (Central Administrative Tribunal ):-
With a view to easing the congestion of pending cases in various High Courts and other Courts in the country, Parliament had enacted the
Adminisitrative Tribunals Act, 1985 which came into force in July, 1985 and the Administrative Tribunals were established in November,
1985 at Delhi, Mumbai, Calcutta and Allahabad. Today, there are 17 Benches of the Tribunal located throughout the country wherever the seat
of a High Court is located, with 33 Division Benches. In addition, circuit sittings are held at Nagpur, Goa, Aurangabad, Jammu, Shimla,
Indore, Gwalior, Bilaspur, Ranchi, Pondicherry, Gangtok, Port Blair, Shillong, Agartala, Kohima, Imphal, Itanagar, Aizwal and Nainital.
The Central Administrative Tribunal has been established for adjudication of disputes with respect to recruitment and conditions of service
of persons appointed to public services and posts in connection with the affairs of the Union or other local authorities within the territory
of India or under the control of Government of India and for matters connected therewith or incidental thereto. This was done in pursuance of
the amendment of Constitution of India by Articles 323A. In the statement of objects and reasons on the introduction of the Administrative
Tribunals Act, 1985, it was mentioned that the setting up of such Administrative Tribunals exclusively would go a long way in reducing the
burden on the various courts and reduce pendency and would also provide to the persons covered by the Administrative Tribunals a speedy and
relatively cheap and effective remedy. In addition to Central Government employees, the Government of India has notified 45 other
organizations to bring them within the jurisdiction of the Central Administrative Tribunal. The provisions of the Administrative
Tribunals Act, 1985 do not, however, apply to members of paramilitary forces, armed forces of the Union, officers or employees of the
Supreme Court, or to persons appointed to the Secretariat Staff of either House of Parliament or the Secretariat staff of State/Union
Territory Legislatures.