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TMI Blog2016 (3) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... de the scope of these proceedings. We notice that the impugned order has not touched upon imposition of penalty under section 76 while disposing off the order of the original authority dated 11 th December 2009 against which the assessee had filed an appeal before Commissioner of Central Excise & Customs (Appeals), Aurangabad. - Additional ground not admitted. Our reason for not deciding on merits is prompted by the letter of respondent dated 8th January, 2016 placed before us in lieu of representation and seeks dismissal of appeal of Revenue as the amount in dispute is below the threshold limit that allows exercise of discretion in refusing to hear the matter. We notice that this is so and, additionally, that it is well below the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility of M/s Himalaya Tyres for threshold limit, applicable to small service-providers under notification no. 6/2005-ST dated 1 st March 2005, should be set aside. An additional ground has been incorporated seeking imposition of penalty under Section 76 of Finance Act, 1994. 2. The introduction of additional ground of appeal through the review undertaken in exercise of powers conferred by section 86(2A) of Finance Act, 1994 is outside the scope of these proceedings. We notice that the impugned order has not touched upon imposition of penalty under section 76 while disposing off the order of the original authority dated 11 th December 2009 against which the assessee had filed an appeal before Commissioner of Central Excise Customs (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- because the exemption was incorrectly availed by them; the exemption allowed abatement of goods sold along with rendering of service and to the extent that it was separately billed in the invoice. 4. Our attention has been drawn in the cross-objection filed by assessee that this dispute was taken to the Commissioner (Appeals) twice before the review that led to the present appeal. Considering that the first order of the original authority had quantified a differential amount of ₹ 43,630/- which is but a tenth of the tax alleged in the notice to have been short-paid, such demonstrated lack of certainty baffles. Needless to say, imposition of penalty in excess of the limit prescribed in section 78 has contributed in no small measu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and coordination within the same establishment that has led to this sorry state of affairs. 6. Our second reason for not deciding on merits is prompted by the letter of respondent dated 8 th January, 2016 placed before us in lieu of representation and seeks dismissal of appeal of Revenue as the amount in dispute is below the threshold limit that allows exercise of discretion in refusing to hear the matter. 7. We notice that this is so and, additionally, that it is well below the prevailing limit of ₹ 10 lakhs prescribed by the Central Board of Excise and Customs, in its instruction in F.No. 390/Misc./163/2010-JC dated 17 th December 2015 in exercise of powers under section 35R of the Central Excise Act, 1944 made applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awal. The ARs being the representative of the Chief Commissioners/ Commissioners, in the absence of any application for withdrawal, the Hon'ble CESTAT may not proceed with the disposal of Department's appeal citing the parameters contained in the Policy. Further, in the absence of instructions from the jurisdictional Chief Commissioners/Commissioners, it is not appropriate for the ARs to comment whether or not the appeal is covered within the parameters for withdrawal. 9. Doubtlessly, mass listing, preceded by compilation and evaluation, of pending appeals will require the active co-operation and enthusiasm on the part of the Chief Commissioners/ Commissioners and the office of the Chief Commissioner (AR) in the Tribunal. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the departmental authorities in relation to all matters arising out of the exercise of the powers or of the discharge of the functions of the Tribunal. Chief Commissioner (AR) is advised to convey the gravity of the statutory conferment supra and ensure that all his officers are aware of the consequences of transgression. The Tribunal is not subject to any departmental authority and is not required to submit to the decisions of a departmental authority in the discharge of its function. To presume that disposal of Departmental appeal by Tribunal will have to await the application for its withdrawal is also a patent disregard of the authority conferred on the Tribunal by law. 11. Personal disinclination, ideological dissonances or i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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