Custom, Excise & Service Tax Tribunal
Icd Patparganj(Sonepat) vs Ms Sedna Impex India Pvt Ltd on 30 September, 2024
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHANDIGARH
REGIONAL BENCH - COURT NO. I
Customs Appeal No. 60443 of 2020
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/289-290/2020-21
dated 06.07.2020 passed by the Commissioner of Customs (Appeals), New
Customs House, Near IGI Airport, New Delhi]
Commissioner of Customs ......Appellant(s)
ICD Patparganj & Other ICDs
Patparganj, Delhi 110096
(& Sonepat, Haryana)
VERSUS
M/s Sedna Impex Pvt Ltd ......Respondent
Head Office 105, H3, Vardhman Plaza Tower,
Netaji Subhash Place, Pitampura, Delhi 110034
WITH
Customs Appeal No. 60444 of 2020
(Commissioner of Customs vs M/s Sedna Impex Pvt Ltd)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/289-290/2020-21
dated 06.07.2020 passed by the Commissioner of Customs (Appeals), New
Customs House, Near IGI Airport, New Delhi]
Customs Appeal No. 60062 of 2021
(Commissioner of Customs vs M/s Sedna Impex Pvt Ltd)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/292-294/2020-21
dated 06.07.2020 passed by the Commissioner of Customs (Appeals), New
Customs House, Near IGI Airport, New Delhi]
Customs Appeal No. 60063 of 2021
(Commissioner of Customs vs M/s Sedna Impex Pvt Ltd)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/292-294/2020-21
dated 06.07.2020 passed by the Commissioner of Customs (Appeals), New
Customs House, Near IGI Airport, New Delhi]
Customs Appeal No. 60064 of 2021
(Commissioner of Customs vs M/s Sedna Impex Pvt Ltd)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/292-294/2020-21
dated 06.07.2020 passed by the Commissioner of Customs (Appeals), New
Customs House, Near IGI Airport, New Delhi]
2 C/60302, 60443, 60444, 60445/2020
with C/60062, 60063, 60064/2021
and C/60114, 60141/2023
Customs Appeal No. 60302 of 2020
(Commissioner of Customs vs M/s M K Y Enterprises)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/1195-1211/2019-20
dated 05.02.2020 passed by the Commissioner of Customs (Appeals), New
Customs House, Near IGI Airport, New Delhi]
Customs Appeal No. 60445 of 2020
(Commissioner of Customs vs M/s Elvance Overseas LLP)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/252/2020-21 dated
06.07.2020 passed by the Commissioner of Customs (Appeals), New Customs
House, Near IGI Airport, New Delhi]
Customs Appeal No. 60114 of 2023
(Commissioner of Customs vs M/s Vardhman Sales Agency)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/01/2021-22 dated
04.04.2022 passed by the Commissioner of Customs (Appeals), New Customs
House, Near IGI Airport, New Delhi]
Customs Appeal No. 60141 of 2023
(Commissioner of Customs vs M/s Namo Alloys Pvt Ltd)
[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/PPG/2081/2021-22 dated
31.03.2022 passed by the Commissioner of Customs (Appeals), New Customs
House, Near IGI Airport, New Delhi]
APPEARANCE:
Sh. Anurarg Kumar, Authorized Representative for the Appellant
Shri R.K. Hasija & Shri Shivang Puri and Sh. Aman Garg, Advocates for the
Respondents
CORAM:
HON'BLE Sh. S. S. GARG, MEMBER (JUDICIAL)
HON'BLE Sh. P. ANJANI KUMAR, MEMBER (TECHNICAL)
FINAL ORDER NO. 60558-60566/2024
DATE OF HEARING: 17.09.2024
DATE OF DECISION: 30.09.2024
Per: S. S. GARG
These 9 appeals filed by the Revenue are directed against
different impugned orders passed by the Commissioner of Customs
(Appeals) New Delhi, whereby the learned Commissioner (Appeals)
3 C/60302, 60443, 60444, 60445/2020
with C/60062, 60063, 60064/2021
and C/60114, 60141/2023
has set aside the assessment made by the department on enhanced
value on the basis of acceptance/admission made by the
importer/assessee /respondent. Since the issue involved in all these
appeals is identical, therefore, all the appeals are taken up together
for discussion and decision. For the sake of convenience, the facts of
the Appeal No. C/60443/2020 are taken up as a lead case.
2. Briefly stated facts of the case are that the importer/respondent
had imported Mix Lot of Polyester Knitted Fabrics by filing Bill of Entry
No. 3889693 dated 01.07.2019 at ICD Sonepat and self-assessed
customs duty of Rs.4,27,187.2/- (including IGST Rs.6,24,761/-) on
the declared transaction value of Rs.26,69,919/-. The said Bill of
Entry was assessed by the Deputy/Assistant Commissioner of
Customs, ICD Sonepat at higher value than the declared value. The
total re-assessed customs duty comes to Rs.8,51,653.2/- (total
including IGST Rs. 12,49,801/-) on re-determined value of
Rs.53,22,832/- by the department and thus, the differential customs
duty in Bill of Entry No. 3889693 dated 01.07.2019 comes to
Rs.6,25,040/-. The importer challenged the re-assessment of the
duty and filed appeal before the Commissioner of Customs (Appeals),
New Delhi, who vide the impugned order set aside the re-assessment
of goods at enhanced value and restored the self-assessment at the
declared value and consequently, allowed the appeal filed by the
importer/assessee/respondent by relying upon the decisions of the
Hon'ble Supreme Court in the cases of Dunlop India Ltd - 1983
(13) ELT 1566 (SC) and Eicher Tractors Ltd - 2000 (122) ELT
4 C/60302, 60443, 60444, 60445/2020
with C/60062, 60063, 60064/2021
and C/60114, 60141/2023
321 (SC). Being aggrieved by the order of the ld. Commissioner
(Appeals), the Revenue filed the present appeals.
3. Heard both the parties and perused the material on record.
4.1 The learned Authorized Representative for the appellant-
Revenue submits that impugned orders are not sustainable in law as
the same have been passed without proper appreciating the facts and
the provisions of Section 17(5) of the Customs Act, 1962.
4.2 He further submits that the Commissioner (Appeals) has not
appreciated the fact that the importer after seeing the
contemporaneous import data has agreed to re-determination of
value in their reply to query in EDI system voluntarily forfeited their
right of show cause notice and opportunity of personal hearing.
4.3 He further submits that once the enhancement has been
accepted by the importer, in that case, the assessing officer is not
required to pass a reasoned order. In support of his submission, he
relies on the various decisions :
A.R. Fabrics [Final Order No. 51856/2019 dated
19.07.2019 - Tribunal New Delhi]
Sukhdev Exports Overseas [Final Order No. 50154/2023
dated 21.02.2023 - Tribunal New Delhi]
Rays Engineering Works [Final Order No. 55828-
55830/2024 dated 29.04.2024 - Tribunal New Delhi]
CMR Nikkei Pvt Ltd [Appeals Nos. C/50875/2020,
C/50906/2020, C/50963/2020 - Final Order Nos.
58011/2024, 58012/2024, 58013/2024 all dated
19.08.2024 - Tribunal New Delhi]
5 C/60302, 60443, 60444, 60445/2020
with C/60062, 60063, 60064/2021
and C/60114, 60141/2023
Shiv Trading Company [Appeal No. C/52151/2022 - Final
Order No. 58112/2024 dated 28.08.2024 - Tribunal New
Delhi]
4.4 He further submits that once the enhanced value has been
accepted by the importer and duty is enhanced after payment of
differential customs duty, the importer is preculated from challenging
the enhancement. It was so held by the Tribunal in the case of
Hanuman Prasad & Sons - [Final Order No. 51584-
51619/2020 dated 20.10.2020 CESTAT New Delhi] and
subsequently in the case of CCE & CGST, Jaipur-I vs. Century
Metal Recycling Private Limited - 2024 (3) TMI 1245 CESTAT
New Delhi.
5.1 On the other hand, the ld. Counsel for the respondents submits
that the present appeals are not maintainable in view of the
instructions dated 02.11.2023 issued by the CBIC, which are binding
on the department because the said instructions have been issued
under Section 131BA of the Customs Act, 1962. Section 131BA of
the Act empowers the CBIC to issue instructions fixing monetary
limits for the purpose of regulating the filing of appeal. Relevant
extract of Section 131BA of the Act is reproduced herein below:
"131BA : Appeal not to be filed in certain cases.
(1) The Board 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
appeal, application, revision or reference by the Principal
6 C/60302, 60443, 60444, 60445/2020
with C/60062, 60063, 60064/2021
and C/60114, 60141/2023
Commissioner of Customs or Commissioner of Customs
under the provisions of this Chapter.
***
(5) Every order or instruction or direction issued by the Board on or after the 20th day of October, 2010, but before the date on which the Finance Bill, 2011 receives the assent of the President, fixing monetary limits for filing appeal. application, revision or reference shall be deemed to have been issued under sub-section (1), and the provisions of sub-sections (2), (3) and (4) shall apply accordingly."
By way of instructions dated 02.11.2023, the CBIC has fixed the following monetary limits below which appeal shall not be filed in the CESTAT, the High Courts and the Supreme Court:
Sl. No. Appellate Forum Monetary Limit 1. Supreme Court Rs. 2 Cr. 2. High Courts Rs. 1 Cr. 3. CESTAT Rs. 50 Lakh
However, in paragraph 2 of the instructions dated 02.11.2023, certain exceptions to the monetary limit for filing of the appeal have been provided, such as:
i) Where the constitutional validity of the provisions of an Act or Rule is under challenge.
ii) Where Notification/Instruction/Order/Circular has been held illegal or ultra vires.
iii) Classification and refund issues which are of legal and/or recurring nature.
7 C/60302, 60443, 60444, 60445/2020 with C/60062, 60063, 60064/2021 and C/60114, 60141/2023 Further, paragraph 3 of the instructions dated 02.11.2023 requires withdrawal of all pending cases, before the CESTAT, the High Courts and the Supreme Court which are below the monetary limit prescribed therein.
5.2 He also submits that this very bench of the Tribunal has dismissed 26 appeals of the Revenue on maintainability under the said litigation policy in the case of Commissioner of Customs vs. VSM Impex Pvt Ltd vide its Final Order No. 60260-60285/2024 dated 22.05.2024. He further said the present cases are identical and in each of the case, the amount involved is less than the monetary limit as prescribed in the instructions dated 02.11.2023.
6. After considering the submissions made by both the parties and perusal of the material on record, we find that the present cases are squarely covered under the CBIC's instructions dated 02.11.2023. We also find that none of these cases is falling under the exceptions provided in para 2 of the instructions dated 02.11.2023; though the ld. AR has tried to make out a case that these cases are covered under the exceptions provided in para 2 of the said instructions because the department has challenged the constitutionality and the validity of the Act or Rules, but we do not accept this submission of the ld. AR that the present cases fall under the exceptions. While dismissing the earlier bunch of Revenue's appeals on the identical issue, this Bench has considered various decisions of the High Courts and the Supreme Court, wherein department's appeals were dismissed under litigation policy keeping the question of law, if any, 8 C/60302, 60443, 60444, 60445/2020 with C/60062, 60063, 60064/2021 and C/60114, 60141/2023 open. It will be pertinent to reproduce the findings of the decision in the case of Commissioner of Customs vs. VSM Impex Pvt Ltd (supra) decided on 22.05.2024 which are reproduced herein below:
"6. We have carefully considered the submissions made by both the parties and perused material on record; and also gone through the various decisions relied upon by both the sides. We find that for reduction of litigation, the CBIC has issued circulars/instructions from time to time instructing the department not to file the appeal and in some cases, if it has already filed, not to press the appeal before higher authorities i.e. the CESTAT, the High Courts and the Supreme Court as the case may be, where the duty amount involved is below the minimum threshold limits respectively prescribed in such circulars. In the present cases, we are concerned with the CBIC‟s latest circular dated 02.11.2023, wherein it has been specifically prescribed that no appeal shall be filed before the CESTAT below the monetary limit of Rs.50 lakhs and if already filed, will have to be withdrawn. These instructions have been issued in exercise of its power under Section 131BA of the Customs Act, 1962. The perusal of the circular cited supra shows that the same prescribes monetary limit below which the department shall not file appeal before the CESTAT, the High Courts and the Supreme Court. In so far as, the CESTAT is concerned the monetary limit prescribed is Rs.50 lakhs. Para 3 of the said circular prescribes that in respect of the pending cases before the CESTAT, the High Courts and the Supreme Court which are below the monetary limits, process of withdrawal of the appeal would be undertaken by the department.
7. Further, we find that the present appeals do fall within the instructions as prescribed in the circular dated 02.11.2023. We also note that the CESTAT, the High Courts and the Supreme Court have been consistently dismissing the appeals of the Revenue if the
9 C/60302, 60443, 60444, 60445/2020 with C/60062, 60063, 60064/2021 and C/60114, 60141/2023 same are below the monetary limits as prescribed in circulars issued by CBIC from time to time.
8. It is pertinent to mention here that the amount of duty involved in each of the appeal is below of the threshold limit prescribed in circular dated 02.11.2023 issued by the CBIC wherein it is provided that if the duty amount involved is less than Rs.50 lakhs, then no appeal shall be filed before the CESTAT, and if already filed, the same will be withdrawn by the department.
9. In this regard, we may refer to the decision of the Bombay High Court in the case of CCE vs Suvarna Sanjivani Sugarcane Transport - 2017 (355) ELT 238 (Bom.), wherein the Hon‟ble High Court has observed in para 9 as under :
9. The Division Bench of this Court at Panaji (Goa) of which one of us (Anoop V. Mohta, J.) was a party, while dealing with Sec. 131BA of the Customs Act, 1962 read with Sec. 35R of the Central Excise Act, 1944 and the aspect of reduction of litigation referring to monetary limits from time to time for filing appeals by the department in a case of Commissioner of Customs and Central Excise v. Sesa Goa Ltd., 2017 (3) Bom.C.R. 470 has reiterated as under:
4. Apart from the above position of law the Ministry of Finance issued certain resolutions of excise and customs from time to time and has issued instructions/circulars with clear intention to support the Government cases for reduction of litigation referring to the monitory limits from time to time, for filing appeals by the department before CESTAT/High Court and Supreme Court referring to power conferred by Section 35R of the Central Excise Act, 1944 and Section 131BA of the Customs Act, 1962 and related provisions of the Finance Act, 1994.
5. * * * * *
6. There is no issue that the appeals filed by the department in the year 2 012 having monitory limits of below 15/20 lakhs. The above provisions and
10 C/60302, 60443, 60444, 60445/2020 with C/60062, 60063, 60064/2021 and C/60114, 60141/2023 instructions/circulars therefore covers the case of disposal of these appeals on the same ground. The learned Counsel appearing for the respondents has no objection for such disposal. We are, therefore, inclined to do so.
7. However, it is made clear that in view of the specific provision of Section 131BA(2) as reproduced and emphasized above it is necessary to observe that once the appeals are disposed of in view of the above circumstances, based upon such circulars/instructions "it shall not preclude such Commissioner of Customs from filing any appeal, application, revision or reference in any other case involving the same or similar issues or questions of law.
Further, in the case of CC Vs. FJM Cylinders Pvt Ltd - 2024 (2) TMI 1325 Delhi High Court, the Hon‟ble Delhi High Court has observed in para 2, 3 & 4 as under:
2. Subject Appeal is covered by notification dated 2.11.2023 read with notification dated 17.08.2011 issued by the Central Board of Indirect Taxes and Custom on the subject "Reduction of Government litigation- providing monetary limit for filing appeals by departments before CESTAT/High Court/Supreme Court regarding" The monetary limit prescribed for filing an appeal before the High Court has been enhanced to Rs. 1 Crore by notification dated 02.11.2023.
3. The instructions direct not only for not filing an appeal but also withdrawal of pending cases as per the revised limit.
4. Since the subject appeal involves a duty of Rs.40,21,173/-
which is the below the monetary limit prescribed and is not covered by the exceptions stipulated in the subject notification this appeal is dismissed on the ground of Low Tax Effect."
Further, in the case of CC Vs. Panacea Biotech Ltd - 2024 (1) TMI 580 CESTAT, New Delhi, the Delhi Bench of this Tribunal has held in para 9 & 10 as under:
11 C/60302, 60443, 60444, 60445/2020 with C/60062, 60063, 60064/2021 and C/60114, 60141/2023
9. From the contents of the aforesaid letter also, we do not think that the present appeal by the Department where the revenue involved is less than what has been fixed for filing an appeal to CESTAT would be maintainable and hence the same needs to be dismissed on that ground itself.
10. The learned Counsel for the respondent has pointed out to an order of the Supreme Court in Commissioner of Customs, Rajasthan Versus Sagar Suitings Pvt. Ltd - (2023) 3 Centax 147 (S.C.), where civil appeal filed by the Revenue was dismissed as the tax amount involved was less than the prescribed limit as specified in the notification for the Revenue to appeal and left the question of law open. We feel that the Instructions have been issued with the object to reduce the litigation involving meagre amount of revenue and where no substantial question of law of the nature specified arises for consideration."
Further, in the case of CC Vs. Kulcip Medicines P Ltd - 2009 (14) STR 608 (P&H), the Hon‟ble High Court of Punjab & Haryana has observed in para 12 as under:
12. We are further of the view that the circulars issued by the Board are binding and meant for adoption for the purposes of bringing uniformity. In that regard reliance may be placed on the judgments of Hon‟ble the Supreme Court in the cases of Ranadey Micronutrients v. Collector of Central Excise - 1996 (87) E.L.T. 19 (S.C.) and Paper Products Ltd. v. Commissioner of Central Excise - 1999 (112) E.L.T. 765 (S.C.) = (1999) 7 SCC 84. If the aforesaid principle is applied to the facts of the present case there does not remain any doubt that the circular issued by the Board is to be considered as binding and cannot be deviated even by the department. On that account also the 12 C/60302, 60443, 60444, 60445/2020 with C/60062, 60063, 60064/2021 and C/60114, 60141/2023 expression „clearing and forwarding agent‟ have to be interpreted in the light of the circular.
Similarly, the Hon‟ble High Court of Punjab & Haryana in the case of Ambuja Cements Ltd vs. Union of India - 2009 (236) ELT 431 (P&H) has held in para 9 & 10 as under:
9. It is well settled that the circulars issued by the Board are binding and aims at adoption of uniform products. In that regard reliance has been rightly placed on the judgment of Hon‟ble the Supreme Court in the case of Paper Products Ltd. (supra) and such circulars are binding on the department. Placing reliance on earlier judgments of the Supreme Court in the cases of CCE v. Usha Martin Industries, 1997 (94) E.L.T. 460 (S.C.) = (1997) 7 SCC 47; Ranadey Micronutrients v. CCE, 1996 (87) E.L.T. 19 (S.C.) = (1996) 10 SCC 387; CCE v. Jayant Dalal (P) Ltd., 1996 (88) E.L.T. 638 (S.C.) = (1997) 10 SCC 402 and CCE v. Kores (India) Ltd., 1997 (89) E.L.T. 441 (S.C.) = (1997) 10 SCC 338, Hon‟ble the Supreme Court concluded in para 5 as under :-
"5. It is clear from the abovesaid pronouncements of this Court that, apart from the fact that the Circulars issued by the Board are binding on the Department, the Department is precluded from challenging the correctness of the said Circulars even on the ground of the same being inconsistent with the statutory provision. The ratio of the judgment of this Court further precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action‟ it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time.
13 C/60302, 60443, 60444, 60445/2020 with C/60062, 60063, 60064/2021 and C/60114, 60141/2023
10. It is, thus, evident that the revenue is precluded from challenging the correctness of the circular even on the ground of the same being inconsistent with statutory provisions. It goes further to limit the right of the revenue to file an appeal against the correctness of the binding nature of the circular. Therefore, there is no escape from the conclusion that the circular is binding on the revenue.
10. In view of our discussion and by following the ratios of the various decisions cited supra, we are of the considered opinion that the present appeals filed by the department are not maintainable in view of the instructions dated 02.11.2023 issued by the Board and consequently we dismiss all these 13 appeals leaving the question of law, if any, open."
7. By relying upon the decision in the above stated cases, we are of the considered opinion that the present appeals filed by the department are not maintainable in view of the instructions dated 02.11.2023 issued by the CBIC; and consequently, we dismiss all these appeals under litigation policy without going into the merit of each case.
(Order pronounced in the open court on 30.09.2024) (S. S. GARG) MEMBER (JUDICIAL) (P. ANJANI KUMAR) MEMBER (TECHNICAL) RA_Saifi