Justices SP Bharucha and Santosh Hegde have declared that what is filed before the tribunal is an appeal from successive tiers of departmental adjudication. The appellate stage cannot be used by the central excise authorities to put forth a wholly new plea for the first time. However, while delivering this judgement the judges have not even referred to the fact that the appeal of Warner Hindustan Ltd was pending in the apex court for 10 years. This puts a major question mark on the management and approach of the apex court to public revenue cases.

The first issue that this raises is that of the duality in the court's approach to such cases. The apex court lashes out at the governmental agencies and advocates for filing public revenue matters like excise cases beyond the period of limitation granted by the law. The delays often range from 100 days upwards and are generally not sufficiently explained. The judges point out that there cannot be one time limit under the law for the government and another for the ordinary citizen. With this the judges invariably dismiss the case as time-barred. However, the delay caused in the court by the pendency of a public revenue case is no cause for comment on the complete absence of a management system in the court itself. Hence a governmental delay of a few months to a year or more invites adverse comment and orders, but a court delay of several years invites nothing. The consequence is that time-barred petitions continue to be filed without a proper explanation and the pendency continues in the court without anyaccountability.

The second issue is the fixing of responsibility for the delay in such cases. Till today the Supreme Court, for all its adverse comments and dismissal orders on time-barred excise petitions, has not even once directed that it be told the name of the officers of the Union finance ministry, the central board of excise and customs and the Union law ministry, the central board of excise and customs and the Union law ministry or of the advocates of the Union government who are responsible for the delay. Similarly, there is no attempt to find out as to whether the Union government and its advocates filed any application for an early hearing during the years that the case was pending in the court. Also no query is addressed by the court to its own registry as to why it did not or could not list this case for a hearing during its entire ten years or more of pendency in the apex court. The consequence is that no one either in the Union government or in the court is held accountable and the pattern of unaccountabilitycontinues with no management method evolved by the court to monitor public revenue matters and make such monitoring public at regular intervals.

The third issue this raises is the manner of disposal of such cases by the apex court. When time-barred petitions are filed the apex court does not ask the government advocates the amount of revenue involved in the particular case and the implications of revenue involved in the particular case and the implications of revenue involvement flowing from this case for similar cases. Hence the method of simply dismissing time-barred cases without affixing any responsibility on the officers or the advocates concerned provides little incentive to the honest officer or advocate and creates a handy tool for the unscrupulous to have a judicial imprimatur of dismissal put on their crafty conduct for their own benefit. When appeals pending for several years in the apex court are disposed off, no statement is sought by the court from the counsel as to whether there was a stay operating in favour of a party, why no application was filed for vacation of the stay operating for several years, the public revenue effect of thestay and whether even the company or the assessee is in existence. The court's disposal order could be an infructuous order.

The fourth issue is about the approach of the court in remanding such matters back to the authorities for adjudication or for issue of a fresh notice after so many years without any relevant information even about the existence of the assessee or the change in its management. In some cases the court seeing the number of years that have elapsed before it chooses to decide the case itself. But at other times the court chooses to send the matter all the way down for another round of assessment.

In the case before them the company had claimed that its "Halls ice mint tablets" should be assessed for excise as "ayurvedic medicine". The department however contended that these should be assessed as "patent and proprietary" medicines. When its own departmental authorities rejected the plea, the department went in appeal to CEGAT. There it claimed for the first time that these tablets had to be assessed as "confectionery" and CEGAT accepted that. While holding that the CEGAT could not do this the Supreme Court held that it is open to the excise authorities to issue a fresh notice to the company for assessment under the head "confectionery". But they passed this order without finding out as to whether the company was still in existence or not. Accordingly the apex court order nowhere mentions the dates when the excise levy was demanded, adjudicated upon and the fact of the pendency of the appeal for 10 years before itself. The judicial world seems to be the philosopher's timeless wonder.