CX - Revenue appeal involving duty less than Rs.5 lakhs is not maintainable before CESTAT - unlike instructions governing Income Tax, CBE&C instructions do not indicate that they shall not govern cases, which have been filed before 2011: CESTAT
By TIOL News Service
MUMBAI, JAN 04, 2016: THIS is a Revenue appeal filed against an o-in-a dated 06.11.2006. The amount involved is less than Rs.5,00,000/-.
The appeal was heard recently.
The Bench observed that the CBEC in continuation of its earlier Instruction F.No. 390/Misc./163/2010-JC dated 20.10.2010 had vide letter of even number dated 17.08.2011 revised the monetary limits for filing appeal. Inasmuch as the Board had instructed the departmental officers that appeals are not required to be filed to CESTAT where the duty involved or total revenue including fine and penalty is Rs.5 lakhs or below, in the case of appeals filed on or after 1.09.2011.
On the question of maintainability of the appeal and in the context of the aforesaid instruction, the AR placed before the Bench the Supreme Court decision in the case of Commissioner of Income Tax vs. SumanDhamija - 2015-TIOL-195-SC-IT in which the Apex Court held that "all the appeals were preferred prior to 2011, whereas, the instructions dated 9.2.2011 clearly indicate in paragraph 11 thereof, that they shall not govern cases which have been filed before 2011, and the same will govern only such cases which are filed after the issuance of the aforesaid instructions dated 09.2.2011." The matters were, therefore, remitted back to the High Court for re-adjudication of the appeals on merits.
To this submission the Bench noted that the apex court order relates to a dispute in Income Tax;that unlike the instructions governing Income Tax, the CBE&C instructions do not indicate that they shall not govern cases, which have been filed before 2011.
Observing that there being no such explicit instruction, the CESTAT placed reliance on the Gujarat High Court's judgment in the case of Commissioner of Central Excise, Surat-I vs. Shreenath Fabrics - 2012-TIOL-1114-HC-AHM-CX holding that when the appeal was posted before the Court, the above cited Circulars were very much in force.
The Division Bench of CESTAT held -
"4. Therefore, keeping in view the fact that the amount involved is less than Rs.5,00,000/- and as per the litigation policy of the Government vide Board's letter F.No. 390/Misc/163/2010-JC dated 17/08/2011 read with Hon'ble Gujarat High Court's judgments in the case of Commissioner of Central Excise, Surat-I vs. Shreenath Fabrics (supra) and in the case of Commissioner of Central Excise, Vadodara-I vs. Pharmanza Herbal Pvt. Ltd. reported in - 2012-TIOL-1113-HC-AHM-CX and the judgment of the Hon'ble Karnataka High Court in the case of Commissioner of Central Excise, Bangalore-III vs. Presscom Products reported in - 2011-TIOL-889-HC-KAR-CX, the appeal of the Revenue is dismissed without going into the merits of the case."
A similar decision is also arrived at by a Single Member Bench. See 2016-TIOL-35-CESTAT-MUM
Also see : 2015-TIOL-2512-HC-MAD-ST
Quick Reference: Instruction 3/2011, Dated: February 09, 2011 issued by CBDT.
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"11. This instruction will apply to appeals filed on or after 9th February 2011. However, the cases where appeals have been filed before 9th February 2011 will be governed by the instructions on this subject, operative at the time when such appeal was filed."
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In passing:
For the want of a nail the shoe was lost,
For the want of a shoe the horse was lost,
For the want of a horse the rider was lost,
For the want of a rider the battle was lost,
For the want of a battle the kingdom was lost,
And all for the want of a horseshoe-nail.? Benjamin Franklin
(See 2016-TIOL-37-CESTAT-MUM)
