The Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), New Delhi Bench observed that the Central Board of Indirect Taxes and Customs ( CBIC ) instructions on monetary limit for filing appeal have no application on order passed in violation of mandatory provision under the Customs Act, 1962.
The present appeals have been filed by the Department. The Counsel for the Respondent-Assessee has raised the objection that the amount involved is below the threshold limit required for filing appeals as per CBIC Instruction F. No. 390 dated 17.08.2011 amended on 30.12.2016 according to which the department is restrained to file any appeal involving an amount of less than Rs. 50.00 Lakhs, before CESTAT.
The Authorized Representative for the respondent further mentioned that the threshold limit in each appeal has dropped below the requisite amount of Rs. 50.00 Lakhs as the number of appeals has increased to be equal to the number of Bills of entry filed by the importer. There were 30 bills of entries filed by one and same importer for importing the same product in relatively same period in the name of Century Metal Recycling Private Limited. Learned Authorized Representative accordingly has requested that for the purpose of monetary limit, the total amount of duty involved in all the bills of entry may be clubbed together which will be much more than the required threshold limit of Rs. 10 Lakhs.
The Central Board of Indirect Customs ( CBIC ) has issued an instruction dated 17.08.2011 which was amended on 17.12.2015, 30.12.2016 and recently on 02.11.2023 fixing the monetary limits for the appeals to be filed by the Department in the Tribunal, High Court and the Supreme Court. It clarified that the monetary limit for an appeal to be filed before CESTAT is Rs. 50.00 Lakhs and above.
A Two-Member Bench comprising Rachna Gupta, Judicial Member and Hemambika R Priya, Technical Member “The order of Commissioner (Appeals) under challenge before us is held to have been passed in violation of afore discussed statutory mandate. Hence it cannot be allowed to attain finality due to Departmental Instructions or Clarifications which have to be within the four corners of parent legislation. The circular was for department to follow and not for the assessee to rely upon, especially when the self assessment of assessee is under shadow of doubt, more so when the department is being denied the proper opportunity to defend its stance.”
“Above all, there cannot be any intention of the Department to issue any instruction which is detrimental to its own interest. As observed above, the only intention of the impugned instruction for fixing monetary limit is to reduce the Department litigation. The instruction cannot be enforced at the cost of prejudice to the issuing authority itself” the Tribunal noted.
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