2019 (4) TMI 1184 - AT - Customs

Stay on the operation of the impugned Orderin-Appeal, passed by the Commissioner of Customs (Port) - monetary limit of amount involved in the appeal - HELD THAT - The committee of Commissioners have held that the impugned order falls under clause (a) of Para 3 of the instruction dated 17/08/2011 introduced vide instruction dated 17/12/2015. There is no constitutional validity of any of the provisions of the Act or Rules is under challenge before any of the Superior Courts in respect of the issue under dispute in the present appeal. Accordingly, on perusal of records, the amount involved in this case is below the monetary limit of ₹ 10 lakhs. There is no reasons for staying of the impugned order as prayed by the appellant/Revenue - the Stay Petition being devoid of merits is rejected - The appeal filed by the Appellant/Revenue is well covered under the National Litigation Policy and the same is accordingly dismissed.

Issues involved:
Stay Application filed by the Department for staying the operation of the impugned Order-in-Appeal; Rationalization of demand barred by limitation; Allegation of willful suppression of fact; Appeal filed by Revenue against the order passed by the Lower Adjudicating Authority; Committee of Commissioners' observation on the disputed amount falling within the threshold limit under National Litigation Policy; Monetary limit for filing departmental appeals before CESTAT; Adverse order falling under specific grounds for appeal irrespective of monetary limits; Constitutional validity of provisions not under challenge; Stay of the impugned order.

Analysis:

1. Stay Application and Impugned Order: The Department filed a Stay Application seeking to stay the operation of the Order-in-Appeal passed by the Commissioner of Customs (Port). The Department argued that the Commissioner (Appeals) did not point out any deficiency in the Adjudication Order and failed to rationalize how the demand is time-barred. They contended that the extended period of 5 years in the Show Cause Notice was in accordance with Section 28(4) of the Customs Act, 1962. On the other hand, the Respondent exporter, through their Advocate, reiterated objections to the cess demand, emphasizing that the demand and interest raised against them were barred by limitation. The Ld. Commissioner (Appeals) had allowed their appeal, setting aside the order of the Lower Adjudicating Authority.

2. Allegation of Willful Suppression: The Respondent's Advocate argued that the Adjudicating Authority did not establish any mens rea to prove willful suppression of facts. The Ld. Commissioner (Appeals) supported this argument by setting aside the order against the assessee, stating that the demand and interest raised were indeed time-barred. The Respondent prayed for upholding the impugned order and rejecting the appeal by the Revenue, asserting that there was no need for a stay of the impugned order.

3. Threshold Limit under National Litigation Policy: The Committee of Commissioners observed that the disputed amount in the case was within the threshold limit set by the Board under the National Litigation Policy. However, they highlighted specific grounds for filing departmental appeals before CESTAT irrespective of monetary limits, such as constitutional validity challenges, illegal notifications, or classification and refund issues of legal or recurrent nature. The Committee directed the Deputy Commissioner of Customs to prefer an appeal before CESTAT against the Order-in-Appeal, emphasizing the larger consequences of the issue on similar cases.

4. Monetary Limit for Filing Appeals: The judgment clarified that the amount involved in the case was below the monetary limit of ?10 lakhs for filing departmental appeals before CESTAT. It was noted that the constitutional validity of the provisions of the Act or Rules was not under challenge in any Superior Court regarding the issue in dispute. Consequently, the appeal by the Revenue was dismissed, and the Stay Petition was rejected as devoid of merits. The Cross Objection filed by the Respondent-Assessee was also disposed of accordingly.

In conclusion, the judgment addressed the Stay Application, rationalization of demand, allegation of willful suppression, adherence to the National Litigation Policy's threshold limit, and the specific grounds for filing appeals before CESTAT. The decision highlighted the importance of legal provisions, monetary limits, and the lack of constitutional challenges in determining the outcome of the appeal and the Stay Petition.

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