NATIONAL LITIGATION POLICY - EXCEPTION CARVED OUT IN CIRCULAR NOT PLEADED BEFORE LOWER COURTS- NOT ENTERTAINED BY SC SLP DISMISSED.

References with vital remarks:

Commissioner Of Customs (Port) Kolkata Versus M/s. Gurudeo Impex. - 2026 (8) TMI 1629 - SC Order

There was delay in filing of the appeal which was condoned.

Commissioner Of Customs Port Kolkata Versus M/s. Gurudeo Impex - 2026 (2) TMI 1471 - CALCUTTA HIGH COURT

There was delay of 32 days in filing the appeal which was condoned.

Order of the learned Tribunal CESTAT dated 30.4.2025 not found in search

National Litigation Policy ("NLP") and various circulars issued by CBEC and CBDT.

SC Order with highlights added

Commissioner Of Customs (Port) Kolkata Versus M/s. Gurudeo Impex.

No.- Special Leave Petition (Civil) 30486/2026 [@ Diary No(s). 45311/2026]

ORDER

1. Delay in filing the Special Leave Petition is condoned.

2. The Customs, Excise and Service Tax Appellate Tribunal ("CESTAT") as well as the High Court has dismissed the appeal/petition of the petitioner on the ground that the tax involvement was below the threshold prescribed under the National Litigation Policy ("NLP").

3. In this petition, the petitioner seeks to raise a ground that the case fell within one of those exceptions provided in the Policy.

4. However, we do not find that any such ground was taken before the High Court.

5. In such circumstances, we decline to entertain this Special Leave Petition and the same is, accordingly, dismissed.

6. Pending application(s), if any, shall stand disposed of.

2026 (2) TMI 1471 - CALCUTTA HIGH COURT

Commissioner Of Customs Port Kolkata Versus M/s. Gurudeo Impex.

No.- CUSTA/86/2025 IA NO:GA/1/2025, GA/2/2025

Dated:- February 20, 2026

The Court: There is a delay of 32 days in filing the appeal. We are satisfied with the explanation offered for not preferring the appeal within time. Therefore, the delay is condoned. The application being GA 1 of 2025 is allowed.

2. Heard learned counsel appearing for the appellant. Perused the application as well as the order of the learned Tribunal dated 30.4.2025. The learned Tribunal's order is read as follows:

"It is seen from the records that the amount of revenue involved in the present appeal filed by the Revenue is less than Rs. 50,00,000/- (Rupees Fifty Lakhs only), which is below the threshold limit prescribed for litigation before the CESTAT in terms of the National Litigation Policy Instruction/Circular bearing F.No. 390/Misc./30/2023-JC dated 02.11.2023 issued by the C.B.I.C.

2. Accordingly, the appeal filed by the Revenue is dismissed, in terms of National Litigation Policy prescribed vide the aforesaid Circular."

3. As the involvement of revenue is below the prescribed limit in terms of the national litigation policy and no substantial questions of law arises from the order of the tribunal, the appeal and the connected application being GA/2/2025 are dismissed.

Unquote - analysis and observations of the author:

In this case appeal of taxpayer was allowed by the first appellate authority under Customs Act. Therefore, the Revenue preferred appeal before the CESTAT.

The CESTAT found that tax effect was less than prescribed limit under NLP and Circular of CBEC.

Therefore, the CESTAT dismissed the appeal of Revenue for the said reason as not maintainable as per policy decision of GOI / UOI and CBEC.

The order of CESTAT could not be found in web search, therefore, facts are not known.

Delays- It is also not known whether appeal before CESTAT was filed timely or belatedly?

However, considering normal course of delayed filing by Revenue Departments, it is likely that the appeal before CESTAT was also delayed because even before the High Court and the Supreme Court appeal was filed late.

Exceptions under Circular:

The contents of circular are well known and exceptions provided are also well known. We find that even before the CESTAT this plea was not raised.

Before the High Court also this plea was not raised as we can observe on reading of the judgment of High Court and the same view is taken by the Supreme Court.

If the issue of exception was raised before the CESTAT it could be examined by CESTAT. Even when it was not raised before CESTAT and the appeal was dismissed by CESTAT still this issue was not raised before the High Court.

Therefore, it is clearly an after thought just to raise further litigation. The appeal before the High Court and the Supreme Court are generally filed after consultation with and on advice of senior counsels retained by department.

The honorable High Court has also held that

"..... and no substantial questions of law arises from the order of the tribunal,"

Therefore, the order of CESTAT was entirely on facts, including maintainability of appeal. Therefore, for this reason also appeal should not have been filed before the High Court.

Therefore, this litigation can be described as frivolous right from appeal before the CESTAT.

However, honourable High Court and honourable Supreme Court both have taken the issue of condonation of delay as routine matter and condoned delay.

Whether National Litigation Policy (NLP) is effective:

We observe that in large number of cases of appeals by the revenue:

1. appeals are filed which are not fileable due to low tax effect.
2. Major portion of such appeals are also filed belatedly with COD petition.
3. Major appeals are alos filed with Stay Petitions (SP)
4. Appeals are not withdrawn - these can be withdrawn under simple procedure by writing an application without engaging so many advocates.
5. Representations is made through a large team of Advocates.

In the above case before High Court and Supreme Court the following advocates appeared (as noted in judgments):

Before the High Court

For the Appellant:

1. Mr. Kaushik Dey, Adv.
2. Mr. K.K. Maiti, Adv.

For the Respondent: None.

Before the Supreme Court

For the Petitioner(s)

1. Mr. S. Dwarkanath, A.S.G.,

2. Mr. Gurmeet Singh Makker, AOR,

3. Mr. Kshitiz Singh, Adv.,

4. Mr. Rajat Vaishnav, Adv.,

5. Mr. Kartikay Asthana, Adv.,

6. Ms. Medha Pushkarna, Adv.

For Respondent(s): None.

At both stages, the tax payer did not engaged any Advocate this can be considered as a substantial indicator of frivolous litigation carried by Revenue.

Why counsels advised to file appeal:

Pertinent questions which any citizen can ask are

1. Why in such cases litigation is advised and initiated by revenue?
2. Why appeals are filed even if these are not fileable as per NLP.
3. Why so many counsels are engaged and paid out of public money in pursuing undesirable litigation?
4. Why honourable Courts do not take initiatives to reduce such litigation by levying substantial costs and allow a relief to the tax payer by payment of such costs to the harassed tax payer.

Condonation of delay should be rare in case of litigation by Revenue:

The Revenue departments are

1. well equipped, semi-automated, computerized, and Information Technology Enabled by websites, email facilities, mobile phones WIFI connectivity, audio and video conferencing etc.
2. well organised by high ranking officers who deal with litigation. There is no shortage of staff and there cannot be an excuse like time taken in movements of files or seeking appointments and discussions with counsels or other officers.
3. The concerned authorities can get information on real time basis through the Departmental Representative / Advocates who represented the case and attended even pronouncement of judgment. Even otherwise a litigant must be vigilant to visit websites to find out orders/ judgments which are uploaded quickly on websites.
4. In case a relief is allowed by lower court / authority to the taxpayer, the taxpayer himself file copy of order and concerned officer is made aware of the same.
5. Alertness is required at all levels in the chain of people concerned with filing of appeal namely the first authority like AO, the DR or advocate, seniors of AO.
6. The movement of files and documents are almost instant and at clicks in computer systems.
7. There are standing counsels who have offices / chambers in or nearby courts.
8. Mostly standard drafting is followed/ can be followed.
9. For departmental appeals it should be routine to prepare appeal documents and file the same even without help of counsels.
10. Sufficient period is allowed for filing of appeal at different stages.
11. Alternate arrangement are available, if any officer is absent. There is officer or alternate counsel available.

Therefore, stricter norms for filing of appeal can be followed in case of departmental appeals and there should not be delay.

There should also not be filing of appeal when tax effect is less than prescribed limit.