2020 (2) TMI 1208 - HC - Service Tax

Maintainability of appeal - monetary amount involved in the appeal - HELD THAT - In the present case, there is no challenge to the constitutional validity of any particular Provision, Act or Rule nor there is any challenge to the legality, validity of any Notification/Instruction/Order or Circular. In such circumstances, the Instruction dated 17th August 2011 referred to in Paragraph-4 of the Instruction dated 22nd August 2019 will have no application. In view of the monetary limit prescribed by the Ministry of Finance, Department of Revenue, this appeal is disposed of accordingly.

Summary

Issues:
Appeal under Section 35G of the Central Excise Act, 1944 against final order passed by CESTAT, monetary limit prescribed by Ministry of Finance, Department of Revenue, substantial questions of law as per Instructions dated 22nd August 2019 and 17th August 2011.

Analysis:
The judgment pertains to an appeal under Section 35G of the Central Excise Act, 1944 filed by the Revenue against a final order by the Customs Excise & Service Tax Appellate Tribunal (CESTAT). The order passed by the Commissioner, Service Tax, Ahmedabad, directed the recovery of short-paid service tax, excess cenvat credit availed, and a substantial amount along with interest and penalties. The order specified the recovery amounts, interest rates, and penalties under various sections of the Finance Act, 1994 and the Cenvat Credit Rules, 2004. Notably, penalties were imposed for delayed payment, failure to assess correct taxable value, and non-disclosure in ST-3 returns.

The judgment addressed the maintainability of the appeal in light of the monetary limit prescribed by the Ministry of Finance, Department of Revenue in an Instruction dated 22nd August 2019. The court observed that the appeal would not be maintainable due to the monetary limit set by the Ministry. However, the court also considered the Instruction's Clause 4, which mandates contesting issues involving substantial questions of law, as described in a previous Instruction from 2011, irrespective of the monetary limits. The court highlighted that challenges to constitutional validity or legality of provisions would require contestation beyond monetary limits.

In analyzing the applicability of the Instructions, the court noted that since there was no challenge to the constitutional validity of any provision or the legality of any Notification/Instruction/Order or Circular in this case, the Instruction from 2011 regarding contesting adverse judgments did not apply. Consequently, the court disposed of the appeal based on the monetary limit but kept the substantial question of law open for adjudication in a suitable appeal. The judgment concluded by disposing of the appeal while leaving the substantial question of law open for future consideration.