Custom, Excise & Service Tax Tribunal
Cc, Delhi-Iii vs Agarwal Metal Works Pvt.Ltd on 21 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI COURT NO. III SINGLE MEMBER BENCH Appeal No. E/60425/2013 (Arising out of OIA No.324/SYS/GGN/2013 dt.16.7.2013 passed by the CE & C(Appeals), Gurgaon) CC, Delhi-III Appellants Vs. Agarwal Metal Works Pvt.Ltd. Respondent
Appearance:
Shri M.S.Negi,DR for the Appellants Shri T.R.Rastogi,Advocate for the Respondent CORAM:
Hon'ble Mr. Manmohan Singh, Member (Technical) Date of Hearing/decision: 21.05.2014 FINAL ORDER No.52305/2014 Per MANMOHAN SINGH:
Appeal has been filed by department against OIA NO. 324/SYS/GGN/2013 dt.16.7.2013 passed by the Commissioner (Appeals). Commissioner (Appeals) has set aside the demand as time barred. Further amount involved in the case is Rs.4,56,988/-. Department has taken a stand that this case is linked with the case of M/s.Satya Metals wherein it was observed some fraudulent transactions have taken place and overall amount involved was Rs.6,89,91,711/-. Revenue also raised the point that even though the demand is less than Rs.5 lakh in the present case and as per CBECs instruction dated 17.8.2011, appeal shall not be filed by the department in Tribunal/Courts but as constitutional validity of the provisions of an Act or Rule is under challenge, appeal may be preferred even though the amount involved is less than Rs.5 lakh. However, no such appeal or grounds were produced before the Tribunal.
2. On the other hand, learned Counsel of the respondent pointed out that the departmental appeal on the issue wherein consistent stand has been taken as per instruction dated 17.8.2011 issued under Section 35R that no appeal should be filed by the department before the Tribunal involving duty less than Rs.5 lakh. He further pointed out that the judgment in the case of CCE & ST, Chennai vs.Tube Investments of India Ltd.-2013 (297) ELT 91 (Tri.-Chennai) wherein it has been clearly pointed out that instruction do not allow clubbing of appeals of similar nature or recurring nature. On this ground, he prayed that appeal was not maintainable.
3. I have examined the matter. I have also gone through the Boards instruction F.No.390/Misc/163/2010-JC dated 17.8.2011 and find force in the contention of the ld.Counsel of the respondent that no appeal is required to be filed by the department in case duty involved is less than Rs.5 lakh. The facts of the present case are similar to the facts of the judgment quoted by the respondent and also fit into national litigation policy. Accordingly, appeal of the department is not maintainable and thus dismissed.
(dictated & Pronounced in the open court)
( Manmohan Singh) Member(Technical)
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