Commissioner Of Central Excise & ... vs M/S. Taiyo Lucid Pvt. Ltd

[Arising out of Order-in- Appeal No. AGS(23-24) 06, 07/2010 dtd. 4/2/2010 passed by the Commissioner (Appeals) of Central Excise & Customs, Aurangabad]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

Commissioner of Central Excise & Customs, Aurangabad : Appellants

VS

M/s. Taiyo Lucid Pvt. Ltd. : Respondent

Appearance

Shri. V.K. Shastri, Asstt. Commissioner (A.R.) for the Appellants Ms. Padmavati Patil, Advocate for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 11/5/2015 Date of decision: 11/5/2015

ORDER NO.

Per : Ramesh Nair

This Appeal filed by the Revenue involving interest of Rs. 2,04,314/- which is less than Rs. Five Lakhs. In terms of Government Litigation Policy Vide F. No. 390/MISC/163/2010/JC dated 17/8/2011 Revenue is not supposed to file appeal against order of the Commissioner(Appeals) if amount involved is less than Rs. 5 lakhs. As regard this appeal which is filed before the issuance of litigation policy dated 17/8/2011. The Honble High Court of Karnataka judgment in the case of Commissioner of C. Ex., Bangalore-III V/s. Presscom Products [2011(268) E.L.T. 344(Kar)] and Honble High Court Gujarat judgments- Commissioner of C. Ex. & Cus., Surat-I V/s. Shreenath Fabrics [2014 (303) E.L.T. 540(Guj)] and Commr. of C.Ex. & Cus., Vadodara-I V/s. Pharmanza Herbal Pvt. Ltd[2014(306)E.L.T. 153(Guj)] has held that the monitory limit prescribed under circular shall also be applicable in the cases which were filed prior to issuance of Litigation of policy. Operative part of the Honble High Court orders are reproduced below:

Commissioner of C. Ex., Bangalore-III V/s. Presscom Products [2011(268) E.L.T. 344(Kar)] Appeals to Appellate Tribunal and High Court - National Litigation Policy - Appeal filed before monetary limits for such appeals was fixed by CBEC Circular, involving amounts below limits so fixed - HELD : Assessee could not be denied benefit of the CBEC Circular, even though substantial question of law involved in appeal was answered against them. [para 19] Commissioner of C. Ex. & Cus., Surat-I V/s. Shreenath Fabrics [2014 (303) E.L.T. 540(Guj)] Appeal by Department before High Court - Maintainability of, considering monetary limit prescribed therefor vide Departmental circular - Amount involved in appeal filed by Department was less than ` 10 lakhs, which was the monetary limit fixed vide C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC, dated 17-8-2011 - Applicability of circular challenged on ground that appeal filed on 1-4-2011 - However, when appeal came up for consideration, the circular was in force - Department being bound by its own circulars and instructions, held that the monetary limit applied and instant appeal dismissed solely on ground of such monetary limit - Rule 14 of Cenvat Credit Rules, 2004 - Section 11A of Central Excise Act, 1944. [paras 4.3, 4.4, 5] Commr. of C.Ex. & Cus., Vadodara-I V/s.

Pharmanza Herbal Pvt. Ltd[2014(306)E.L.T. 153(Guj)] Appeal to High Court - Monetary limit prescribed therefor vide Departmental Circulars and Instructions - C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC, dated 20-10-2010, fixed monetary limit of ` 2 lacs provided that where the duty involved or total revenue including amount of penalty is below that limit, the Department would not file the appeal, but the limit was enhanced to ` 10 lacs in the subsequent C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC, dated 17-8-2011 - Appeal in instant case was filed on 15-9-2010 i.e. before the date of the circular, however it came up for hearing after coming into force of the Circular dated 20-10-2010 - Amount involved being ` 50,904 i.e. less than prescribed limit, merits of appeal not considered and appeal by Department dismissed - Section 35G of Central Excise Act, 1944 - Rule 5 of Cenvat Credit Rules, 2004. [paras 4, 4.1, 5, 6.1, 7] In view of the above settled legal position the present appeal involving amount Rs. 2,04,314/- which is less than threshold limit of Rs. 5 lakhs is not maintainable and same is dismissed without going into merit of the case.

CO also disposed of.

(Dictated in court)

Ramesh Nair Member (Judicial)

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