The Commissioner of CGST and Central Excise, Raigad Commissionerate Versus M/s Dorf Ketal Pvt. Ltd.
Central Excise
2018 (12) TMI 1291 – BOMBAY HIGH COURT – 2019 (366) E.L.T. 66 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 19-12-2018
CENTRAL EXCISE APPEAL NO.155 OF 2018
Central Excise
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 tax effect involved in this appeal is below Rs. 50 lakhs, which is the minimum prescribed by the CBIC in its circular dated 11th July, 2018 to enable the department to file and press the appeals before the High Court. In this con
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had confirmed a Cenvat credit amount of Rs. 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 respectively prescribed in such circulars. In the present case, we are governed by the latest circular of CBIC dated 11th July, 2018. Relevant portion of the circular reads as under:
“In exercise of the powers conferred by Section 35R of t
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ruction 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 revised monetary limits below which the department shall not file appeal before CESTAT, High Court or the Supreme Court. In so far as High Court is concerned, the monetary limit prescribed is Rs. 50 lakhs. The
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ding of the said circulars dated 11th July, 2018 and 11th July, 2018 would be that the appeals involving tax effect less than Rs. 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 appeals. According to the revenue, the revised monetary limits would apply to fresh cases to be instituted after the issuance of the circular. The Supreme Court referred to the Government of India's Litigation
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