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TMI Blog2013 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. This appeal has been admitted on the following substantial questions of law: Whether the Tribunal committed substantial error of law in holding that credit of service tax paid on services of Customs House Agent/port services is admissible to the manufacturers as 'input service tax credit' by overlooking statutory provision of Rule 2 (1) of Cenvat Credit Rules, 2004 . 2. We heard Mr. Y N.Ravani, learned advocate for the appellant and Mr. Parithosh Gupta, learned advocate for the respondent. 3. The relevant facts involved in this appeal are that the respondent-assessee engaged in the manufacture and export of Rotary Screen Printing Machine and parts thereof and holding Central Excise Registration number, was found to have wrongly enjoyed the cenvat credit. In the course of verification by the audit party, it was noticed that in certain cases the bills/invoices were issued by the service providers and the assessee had availed Cenvat Credit thereon, which included in the cenvat credit taken in respect of Customs House Agent/Port services in relation to the goods exported by the assessee. According to the Department, such kind of services namely Port and Custom Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India aims to reduce Government litigation so that the Government cases to be a compulsive litigant. The purpose underlying this Policy is to ensure that valuable time of the Courts is spent in resolving pending cases and in bringing down the average pendency time in the Courts. To achieve this, the Government should become an efficient and responsible litigant. 2. It also states that appeals shall not be filed if the matter is covered by a series of judgments of the Tribunal and the High Courts which have held the field and have not been challenged in the Supreme Court. The Policy also lays does that no appeal shall be filed where the assessee has acted in accordance with the long standing practice and also merely because of change of opinion on the part of the jurisdictional officers. 3. The Hon'ble Bombay High Court in its order dated 21.6.2010 in the case of CCE VS. Techno Economic Services Pvt. Ltd. (2010 (255) ELT 526 (Bombay) had desired that CBEC consider issuing circular, on the lines of circulars issued by the CBDT, so as to reduce litigations arising out of indirect tax litigations. 4. In respect of appeals filed in the Supreme Court, the proposals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or ultra vires. c) Where audit objection on the issue involved in a case has been accepted by the Department. 2. It may also be noted that, wherever it is decided not to file appeal in pursuance of these instructions, which are aimed solely at reducing government litigation, such cases shall not have any precedent value. In such cases, Commissioners should specifically record that even though the decision is not acceptable, appeal is not being filed as the amount involved is less than the monetary limit prescribed by the Board. Further in such cases, there will be no presumption that the Department has acquiesced in the decision on the dispute issues in the case of same assessee or in case of any other assesses, if the amount involved exceeds the monetary limits. Thus, in case any prior order is being cited on facts and law, it must be checked whether such order(s) were accepted only on account of the monetary limit before following them in the name of judicial discipline. 3. In respect of an order where it is decided not to file appeal in pursuance of these instructions, a data base needs to be created so that all the Commissionerates are made aware of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in a case involving duty upto Rs. 25 lakhs, whether with penalty and interest or otherwise. However, where the imposition of penalty is the subject matter of dispute and the said penalty exceeds the limit prescribed, then the matter could be litigated further. Similarly, where the subject matter of dispute is the demand of interest and the amount of interest exceeds the prescribed limit, then the matter may require further litigation. 3. Adverse judgements relating to the following should be contested irrespective of the amount involved: a) Whether the constitutional validity of the provisions of an Act or Rule is under challenge. b) Where Notification/instruction/order or Circular has been held illegal or ultra vires 3. Several queries connected with application of monetary limits have been raised by the field formations which were considered by the Board and are being clarified as below:- Issues Clarifications a) Whether duty involved mentioned in the instruction dated 20.10.2010 refers to duty outstanding to be collected or the total duty demanded for deciding the threshold limit prescribed therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellant ought to have brought to the notice of this Court the circular dated 17.08.2011 and, if this circular had been brought to the notice of this Court, the appeal would not have been admitted. 6.1 In our opinion, since in the instant appeal the amount of service tax involved is Rs. 2,02,472/- only and penalty of Rs. 2,02,472/- only. Therefore, in view of the circular dated 17.08.2011, the appeal could not be preferred by the Central Excise and Customs Department before this Court. It cannot be gainsaid that the Department is bound by its own circulars. Though the appeal has been admitted, we did not go into the substantial question of law formulated by this Court. Mr. Ravani, learned counsel for the respondent pointed out that after circular dated 17.08.2011 no other circular has been issued by the Ministry of Finance, Department of Revenue Central Board of Excise and Customs, Government of India, New Delhi, authorizing the Department to file appeals where the amount is less than Rs. 10 lacs. 7. For the aforesaid reasons, this appeal is dismissed keeping the questions open to be decided in an appropriate case. - - TaxTMI - TMITax - Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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