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TMI Blog2012 (7) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... aria, JJ. Shri R.J. Oza, Counsel, assisted by Ms. Rujuta Oza, Advocate, for the Appellant. None, for the Respondent. JUDGMENT This appeal has been admitted on the following substantial questions of law : "(i) Whether Hon'ble Tribunal has committed an error in interpreting Rule 5 of Cenvat Credit Rules along with sub-rule 2(l) pertaining to definition of "input service" while interpreting words "used in manufacture" by treating various maintenance services as service "used in manufacture"? (ii) Whether Hon'ble Tribunal has committed error by including advertisement expenses, insurance premium employees (PA Policy), labour processing charges, repair of computers, legal and professional expenses, mobile expenses, consultation engineering services and maintenance and repair service as services "used in manufacture" of the final product for export? (iii) Whether Hon'ble Tribunal has committed an error in ignoring Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 stipulating that refund of Cenvat credit is allowed only in respect of input service used in the manufacture of final product, which is cleared for export?" 2. We heard Mr. R.J. Oza, learned counsel for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 20-10-2010 is extracted and reproduced hereinbelow : F. No. 390/Misc./163/2010-JC Ministry of Finance Department of Revenue Central Board of Excise & Customs New Delhi 20th October, 2010 "1. The National Litigation Policy formulated by the Government of 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and any other penalty imposed under the Law in force at the relevant time, no appeal shall be filed before the High Court. 6. Adverse judgments relating to the following should be contested irrespective of the amount involved : (a) Where 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. (c) Where audit objection on the issue involved in a case has been accepted by the Department. 7. 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 assessees, if the amount involved exceeds the monetary limits. Thus, in case any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in a case involving duty of ₹ 5 lakhs or below with equal penalty and interest, as the case may be, no appeal shall be filed in the Tribunal. Similarly, no appeal shall be filed in the High Courts if the duty involved does not exceed ₹ 10 lakhs with or without penalty and interest. Further, the Commissionerates shall not send proposal to the Board for filing Civil Appeal or Special Leave Petition in the Supreme Court in a case involving duty upto ₹ 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 judgments 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. 4. Several queries conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal was filed on 15-9-2010 and thus before the date of circular, when it came up for admission on 20-4-2011 at that time the circular was in force. 7. In the above view of the matter, we are of the opinion that learned counsel for the appellant ought to have brought to the notice of this Court the circular dated 17-8-2011 and, if this circular had been brought to the notice of this Court, the appeal would not have been admitted. 7.1 In our opinion, since in the instant appeal the amount involved is ₹ 50,904/- only, in view of the circular dated 20-10-2010, the appeal could not have been 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. As we have recorded in our order in Tax Appeal No. 1294 of 2011 on being informed from the side of the Department, it may be stated that after circular dated 17-8-2011 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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