Custom, Excise & Service Tax Tribunal
Cce, Madurai vs M/S. Tcp Ltd on 21 July, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/1202/2004
(Arising out of Order-in-Appeal No.155/2004 dated 28.7.2004 passed by the Commissioner of Central Excise (Appeals), Madurai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
Honble Shri R. Periasami, Technical Member
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether order is to be circulated to the Departmental authorities?
CCE, Madurai Appellant
Vs.
M/s. TCP Ltd. Respondent
Appearance Shri P. Arul, Superintendent (AR) for the Appellant Shri S. Muthuvenkataraman, Advocate for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Honble Shri R. Periasami, Technical Member Date of Hearing: 21.07.2014 Date of Decision: 21.07.2014 Final Order No.40558/2014 Per P.K. Das
1. Revenue filed this appeal against the order of the Commissioner (Appeals) whereby the adjudication order was set aside.
2. After hearing both sides, and on perusal of the records, we find that the adjudicating authority confirmed the demand of duty of Rs.66,816/-. The learned AR for Revenue submits that the amount may be less than Rs. 5 lakhs but the Board's Circular No.390/Misc./163/2010-JC dt. 20.10.2010 will not apply as decided by the Hon'ble Madras High Court in the case of CCE Chennai-IV Vs M/s.Sundaram Fasteners Ltd. 2014TIOL-201HC-MAD-CX. He further submits that the Board's circular (supra) would not apply retrospectively.
3. We find that the Hon'ble Madras High Court in the case of Sundaram Fasteners Ltd. after considering the said Board's circular observed that irrespective of the monetary limit involved in such cases, if the substantial question of law raised demands consideration by the Hon'ble Court, such circular ought not to be interpreted or understood to stand in the way of the Hon'ble Court to consider the merits of the case. It is apparent that the Hon'ble High Court had made observation in the context of question of law formulated by the Hon'ble Court on merits of the case. The Hon'ble Madras High Court while confirming the order of the Tribunal on the levy of penalty under Section 11A had reversed the order of the Tribunal on the question of interest as per Rule 14 read with Section 11AB of the Central Excise Act, 1944.
4. The learned Advocate on behalf of the respondent placed the latest circular of the Board in F.No. 390/Misc/163/2010-JC dt 12.12.2013 wherein it has been clarified that the Departmental Counsels and the DRs in the Tribunal must plead that a judgment accepted for reasons of low amount should not be relied upon by the appellate forum and that the Department is at liberty to agitate the issue in subsequent proceedings till the matter is settled on merits. It is seen from the said circular that Section 35R of the Central Excise Act, 1994, made applicable to the Finance Act, 1994 vide Section 83 of the said Act, and Section131BA of the Customs Act, 1962 vest power with the Board to regulate filing of appeals in the Tribunal and the Courts by specifying monetary limit below which appeal need not be filed. The Hon'ble Karnataka High Court in the case of Commissioner of Income Tax, Bangalore Vs Ranka & Ranka - 2012 (284) ELT 186 (Kar.) held as under :-
"27.?In the instant case, the Instruction No. 3/11 is more beneficial than Instruction No. 2/05. If Instruction No. 3/11 is also made applicable to the pending appeals before this Court, it would grant relief to the assessee. Apart from granting relief to the assessee, if number of appeals pending before this Court are disposed of on the basis of the said circular, the precious time which would be saved by this Court could be better utilized for deciding disputes where tax effect is enormous. That apart, the duration, an appeal takes in this Court would be reduced as desired by the National Litigation Policy."
The Hon'ble Karnataka High Court also observed that the benefit to which the assessee is entitled to should not be dependent on the date of the decision, over which neither the assessee nor revenue has no control. In this context, the circular would be discriminatory, if it is held to be prospective only. We have also noticed that the Bangalore Bench of the Tribunal in the case of CCE Vs IOCL and others vide Final Order No.20664 to 20688 of 2014 dated 29.4.2014 in relation to appeals of 2007 dismissed the appeal on the ground that duty and penalty involved is less than Rs.5 lakhs. The Tribunal held that even where appeals were filed prior to issue of the circular by the Board prescribing monetary limits for filing the appeals by the Revenue, in the light of the decision of Hon'ble Karnataka High Court in CIT Vs Ranka & Ranka (supra).
5. In view of that, we dismiss the appeal filed by the Revenue following the Board's circular and the decision of Hon'ble Karnataka High Court (supra).
(Dictated and pronounced in open court)
(R. PERIASAMI) (P.K. DAS)
Technical Member Judicial Member
Rex
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