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TMI Blog2019 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai (for brevity "the Tribunal") in Final Order Nos.40633, 40636, 40635 and 40634 of 2018, dated 12.03.2018 respectively. 2.The above appeals have been filed raising the following common substantial question of law:- "Whether the Tribunal is correct in dismissing appeal filed by the department on the ground of Monetary limit issued in the circular issued by the Board, when there is no request from the department/appellant/litigant to invoke the said instructions." 3.Heard Mr.A.P.Srinivas, learned Senior Standing Counsel for the appellant/Revenue; and Ms.P.Jayalakshmi, learned counsel, for Mr.Muthuvenkataraman, learned counsel for the respondent/assessee. 4.The Revenue preferred appeals before the Tribunal challenging the Order-in-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matter, but has dismissed the appeals filed by the Revenue on the ground that the amount involved in the case is less than Rs. 10,00,000/- (Rupees Ten Lakhs Only) and since the appeals are less than the said threshold limit, the same have to be rejected. Thus, by applying the said circular instructions, the appeals were rejected and the cross objections filed by the assessee, which were in the nature of written submissions were also disposed of. 6.The question would be as to whether, the Tribunal was right in doing so especially in the light of the grounds raised by the Revenue before the Tribunal. 7.The Revenue is before us contending that the Department cannot be compelled to withdraw an appeal, nor can a Court or a Tribunal dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of duty taken in the books of account, it will form part of the cost of materials and reflect in the value of final product. As per Section 18(5) of the Act, it is the onus of the importer to produce supportive documentary proof showing that the incidence of excess duty is neither included in the cost of material, nor the imported goods were not used in the final product manufactured and sold during the said period of 7 months. 10.Further, it is contended that in respect of addition of 2% notional high sea sale commission on the shippers invoice value, the Commissioner (Appeals) has relied upon the Board's Circular No.32/2004-Cus., dated 11.05.2004. The said circular has been issued by the Board only with a view to consider the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.We may note that the circular issued by the Board carves out certain exceptions and in such cases, the Department cannot be compelled to withdraw an appeal, nor it would be right for the Court to dismiss an appeal when the Revenue contends that the matter would fall under any one of the exceptions as mentioned in the circular instructions. 15.Before us, it is contended that the issue involved in the case of the assessee is a case of refund and it is also recurring in nature and therefore, in terms of sub-Clause (c) of paragraph 3 of the circular instructions dated 17.08.2011, as modified on 17.12.2015, the Revenue is entitled to pursue the appeals on merits. 16.In our considered view, the Revenue cannot be foreclosed from raising suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment in the case of The Commissioner of Customs, Trichy-1 vs. M/s.PPN Power Generating Company Ltd., Chennai [C.M.A.No.2895 of 2018: dated 19.12.2018]. 19.In the light of the above reasons, these civil miscellaneous appeals are allowed, the common order passed by the Tribunal is set aside and the appeals are restored to the file of the Tribunal. The Tribunal shall hear the Revenue regarding their contention that the dispute raised by the Revenue is relating to refund and recurring in nature and they are entitled to contest the appeals irrespective of the monetary limit fixed in the circular instructions dated 17.12.2015 as reiterated in the instructions dated 25.05.2018. It is open to the assessee to raise their objections in this regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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