How not to write a circular

EXPERT EYE

There is a saying that the best is sometimes the enemy of the good. I was reminded of the saying when I read the circular about valuation practice of second hand machinery to be adopted by Customs recently issued on 12.2.2008*. This circular is full two pages long and has quoted any number of valuation rules, one Supreme Court judgement and three Tribunal judgements. The immediate provocation of issuing this circular is that the Customs Houses are not following the uniform practice as in the old circular.

Why I call the best is an enemy of the good is that this is possibly the best circular that the best officer of the Department with the best knowledge in his possession can ever draft. For sheer erudition, this circular will get full marks. But for the sake of an ordinary second-hand machinery importer this circular will be a nightmare. It is so complicated due to quoting several judgements, rules, and regulations, that, in the end, the importer will hardly be able to understand what it all comes to.

If the Department wants to issue one more circular because the previous one was not being followed uniformly**, then that is hardly the solution. What is the guarantee that the new circular will be followed uniformly? The old circular should have been replaced only if it was bad or otiose. But in this case, the reason is not that.

If fact the previous circular*** was better and it was settled for decades. A settled law should not be unsettled. So, a settled practice should also not be unsettled. The old circular was very simple. It said that for the old machinery, one has to first ascertain the year of manufacture and the new price. If the new price could not be found from the invoice, a certificate from authorised Chartered Engineer/Accountant was acceptable. Thereafter a slide rule for depreciation was to be given depending on the number of years of use. I remember that in Bombay there used to be dozens of cases every week in the 1980s and we found no difficulty about the circular. Nothing has changed to replace the old and simple circular by a new and highly complicated version which only the author of the circular will follow. I never used to get the goods examined by any panel of experts. We have so many machinery experts in the Customs Houses. And we really did not need a machinery expert either. Common sense, which is usually uncommon, is the best guide.

Finally, it is extremely unwise to quote judgements in support of the different provisions in the circulars. The reasons are two "" (i) The moment you quote a judgement, the whole judgement becomes a part of the circular. Then there will be other judgements opposite to it. Also there will be several judgements referred in this judgement which also will be read together. (ii) And the most critical point is that if the judgement itself is set aside, then the whole circular gets set aside automatically. If the judgement is not quoted in the circular, the circular does not get set aside unless the Board decides to set it aside. The Supreme Court has repeatedly upheld the principle that Board's circulars are binding. But if the circular itself refers to a Tribunal judgement then the binding nature itself vanishes with the judgement being set aside.

The conclusion is that a circular is a direction and not a discourse. It is not the place to show erudition. No circular should be issued just because the previous one was not being followed uniformly. And when a circular is issued it should be 'short and sweet'.

*Circular No.4/2008-Customs dated 12.2.2008
**See para 1 of the circular "As this was resulting into diverse assessments the following guidelines are being issued so that assessments are done as far as possible on their basis".
***F no -493/124/86Cus VI dt 4.1.88 and 19.11.87