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TMI Blog2013 (1) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 5 / 2006-C.E. (NT) dated 14.03.2006 by allowing refund claim for unutilized CENTVAT Credit to assessee, for the supply of material to EOU, treating it as 'deemed Export? (B) Whether tribunal erred in interpreting Section 11B of Central Excise Act, 1944, by ignoring the one year limitation to file refund claim by coming to conclusion that Section 11B is silent on 'deemed export' and hence, limitation does not apply to the 'deemed export'? 1.1 This Court issued Notice on 31st March 2011. 2.0 We heard learned advocates appearing for both the sides. 3.0 The facts stated in brief are that the respondent assessee filed an application dated 3rd July 2008 under Rule 5 of the Cenvat Credit Rules, 2004 claiming refund of Rs. 4, 17, 531/- in respect of un-utilized cenvat credit balance for the goods supplied. The competent tax authority issued show cause notice dated 17th September 2008 on the ground that it was not allowable and that the period for claim from April 2007 to June 2007 was time barred in view of proviso of Section 11B of the Central Excise Act,1944. The said show cause notice culminated into the order dated 8th December 2008 of the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are examined by the Board before filing. The Civil Appeals on matters relating to valuation and classification are filed under Section 35L(b) of the Central Excise Act, 1944 and Section 130E(b) of the Customs Act, 1962. Such appeals are being filed after careful scrutiny by the Board and while examining, the amount involved is kept in mind. On all issues other than those relating to valuation and classification, SLPs are filed by the Board after obtaining the opinion of the Ld. Law officer from the Ministry of Law. However, it may be mentioned that Board has issued instruction vide DO F No. 390/170/92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 8. 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 orders that are accepted solely on the ground that the revenue involved is below the threshold prescribed herein and which should not be taken as having precedent value. The details of such orders in respect of CESTAT and the High Courts is required to be furnished by the Zonal Chief Commissioners in Proforma enclosed (Annexure III E Annexure III F) which should form part of the Monthly Technical Report being sent to the Directorate of Legal Affairs for posting on the departmental website. These Annexures III E [email protected]. 9. The above instructions of the Board must be adhere to strictly for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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. In a case where a part of the duty demanded is not disputed and is paid and the outstanding duty under dispute is less than the monetary limit prescribed by the Board, no appeal shall be filed. In other words, monetary limit shall apply on the disputed duty and not on the total duty demanded in a case. b) Whether monetary limits would apply to cases of refund. c) Whether applications being filed by the Department before office of Joint Secretary (Revision Application) would also be covered under the stipulation of monetary limits. d) Whether e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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