2020 (5) TMI 505 - HC - Central Excise

Monetary amount involved in the appeal - prosecution of appeal - Circular bearing No.F.No390/Misc/163/2010-JC dated 17.08.2011 - whether such appeal filed by the revenue against order dated 08.08.2018, which involved the tax component of ₹ 1,81,754/- could not have been prosecuted or not? HELD THAT - By Circular dated 17th August 2011 referred herein, monetary limit fixed for the Appellate Tribunal to adjudicate the appeal had been restricted to ₹ 5 lac and above. The said monetary limit came to be enhanced upto ₹ 10 lac by Circular dated 17th December 2015. The Central Board of Excise Customs by its extent Instruction F.No.390/Misc./163/2010-JC dated 1st January 2016 has clarified that Circular dated 17th December 2015, whereunder monetary limits for Appellate Tribunal, High Courts and Supreme Court entertaining the appeal has been fixed is to be understood as also applicable to all pending appeals before CESTAT and High Courts - an appeal which was pending as on the date of 1st January 2016, within monetary limit fixed under Circular dated 17th December 2015. Then such appeals were not maintainable before CESTAT. This aspect having been noticed by Tribunal in the instant case could not have entertained the appeal by Revenue. It was required to be dismissed as monetary limit fixed was ₹ 10 lac and in the instant case, the quantum of refund, which was subject matter of appeal, was ₹ 1,81,754/-. Appeal allowed - decided against Revenue.

Summary

Issues:
1. Interpretation of Circular regarding monetary limits for prosecuting appeals before CESTAT.
2. Validity of appeal filed by Revenue against order for refund exceeding monetary limit.
3. Consideration of supplementary appeals and their dismissal.
4. Impact of previous refund orders on the current appeal.

Interpretation of Circular regarding monetary limits for prosecuting appeals before CESTAT:
The High Court considered whether the Revenue could prosecute an appeal before CESTAT when the monetary limit for appeals was specified in Circulars. The Circulars restricted the monetary limit for the Appellate Tribunal, and subsequent instructions clarified the applicability to pending appeals. The Court noted that appeals exceeding the monetary limit were not maintainable. In this case, the appeal by Revenue involved a refund amount of ?1,81,754, exceeding the monetary limit of ?10 lakh. The Court concluded that the appeal should have been dismissed based on the Circulars.

Validity of appeal filed by Revenue against order for refund exceeding monetary limit:
The Court analyzed the appeal filed by the Revenue against an order for refund. The Tribunal allowed the appeal on grounds not raised by the Revenue in the appeal memorandum. It was found that the Revenue's appeal should have been filed within a year from a specific communication, and the delay in filing the refund application rendered the appeal time-barred. The Court noted that the Revenue had not challenged the order granting the refund, leading to the acceptance of the refund order in favor of the appellant.

Consideration of supplementary appeals and their dismissal:
The Court discussed the dismissal of supplementary appeals filed against a common order by the Commissioner of Appeals. These appeals were dismissed due to insufficient explanation for the delay, and the Revenue did not file any appeals against this decision. Consequently, the original order granting the refund to the appellant was upheld, emphasizing the discriminatory nature of denying the refund benefit. The Court held that the appeal by the appellant deserved to be allowed based on these factors.

Impact of previous refund orders on the current appeal:
The Court considered the impact of previous refund orders on the current appeal. It was noted that all refund orders related to a single transaction between the appellant and BSNL. The Court emphasized that denying the benefit of refund would be discriminatory, and the Department could not take different stands on different orders. As a result, the Court answered the substantial question of law in favor of the appellant and against the Revenue, allowing the appeal and setting aside the Tribunal's order.

Conclusion:
The High Court allowed the appeal, setting aside the Tribunal's order and affirming the original order for refund. The Court's decision was based on the interpretation of Circulars regarding monetary limits for appeals, the validity of the Revenue's appeal, the dismissal of supplementary appeals, and the impact of previous refund orders on the current appeal.