2018 (12) TMI 1291 – BOMBAY HIGH COURT – TMI – Revenue appeal – Monetary limit – Recovery of CENVAT Credit – Can the department without pointing out applicability of any of the exceptions in circular dated 11th July, 2018 of CBIC, continue to press the appeal on merits? – Held that:- As is well known by way of its policy for reduction of litigation, the Central Board of Direct Taxes i.e. CBDT and CBIC have been issuing circulars from time to time instructing the department not to file and in some cases if so filed, not to press appeals before Higher Authorities, Tribunal, High Court or Supreme Court as the case may be unless the tax effect involved is higher than the minimum threshhold respectively prescribed in such circulars – In the present case, we are governed by the latest circular of CBIC dated 11th July, 2018.
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Circular is issued in exercise of powers under Section 35R of the Central Excise Act, 1944, which pertains to appeal not to be filed in certain cases. Subsection
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he appeal only it falls in any of the exceptions; not otherwise. This would give rise to wholly arbitrary application of the Government policy which is simply not permissible in law. Excepting the stand of the department would permit the authorities to withdraw appeals against one assessee, whereas without citing any reasons, pursue the appeal against the another assessee situated identically as the former.
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The appeal is dismissed as involving low tax effect. – CENTRAL EXCISE APPEAL NO.155 OF 2018 Dated:- 19-12-2018 – AKIL KURESHI AND M.S. SANKLECHA, JJ. Mr. Jitendra B. Mishra with Mr.Sham Walve for the Appellant. Mr. Durgesh Nadkarni i/by M/s Legal Solutions for the Respondent. P.C.: 1. This appeal is filed by the revenue to challenge the judgment of the Custom, Excise and Service Tax Appellate Tribunal (CESTAT) dated 26th May, 2017. When the appeal was taken up for admission herein, learned counsel for the respondent-assessee raised preliminary objection contending that the ta
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department that the tax effect involved in the appeal is less than ₹ 50 lakhs, we have also ascertained the same from the documents on record. The order passed by the adjudicating authority in the present case was one in which he had confirmed a Cenvat credit amount of ₹ 31,35,863/to be recovered from the respondent-assessee with interest and matching penalty. 4. In background of such facts the question is, Can the department without pointing out applicability of any of the exceptions in circular dated 11th July, 2018 of CBIC, continue to press the appeal on merits? 5. As is well known by way of its policy for reduction of litigation, the Central Board of Direct Taxes i.e. CBDT and CBIC have been issuing circulars from time to time instructing the department not to file and in some cases if so filed, not to press appeals before Higher Authorities, Tribunal, High Court or Supreme Court as the case may be unless the tax effect involved is higher than the minimum threshhold r
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oner (Appeals). All other terms and conditions of concerned earlier instructions will continue to apply. 4. It may be noted that issues involving substantial questions of law as described in para 1.3 of the Instruction dt 17.08.2011 from F No 390/Misc/163/2010JC would be contested irrespective of the prescribed monetary limits. 6. Circular is issued in exercise of powers under Section 35R of the Central Excise Act, 1944, which pertains to appeal not to be filed in certain cases. Subsection (1) of Section 35R provides that the Central Board of Excise and Customs may from time to time issue orders or instructions or directions fixing such monetary limits as it may deem fit for the purposes of regulating the filing of the appeal, applications, revision or reference by the Central Excise Officers under the provisions of Chapter VIA of the Central Excise Act, pertaining to appeals. Thus, this circular has a statutory force. 7. The perusal of the circular would show that the same prescribes
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nder : (a) Where the constitutional validity of the provisions of an Act or Rule is under challenge. (b) Where Notification/Instruction/Order or Circular has been held illegal or ultra virus. 9. Combined reading of the said circulars dated 11th July, 2018 and 11th July, 2018 would be that the appeals involving tax effect less than ₹ 50 lakhs would neither be filed by the department before the High Court nor pressed those already filed. The revised monetary limit, thus is intentionally made applicable to all pending appeals as well. The only exceptions being those laid down in the earlier circular dated 17th August, 2011, relevant portion of which we have reproduced above. 10. We may record that like reasoned judgment in case of Director of Income Tax Vs. S.R.M.B. Dairy Farming (P.) Ltd. (2018) 400 ITR 9 (SC), the Supreme Court had the occasion to examine the contents of a similar circular issued of the CBDT on 9th February, 2011 prescribing revised monetary limits for filing appe
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