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TMI Blog2024 (3) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... hat none shall be condemned un-heard and that none shall be pre-judicially affected. The Courts/Adjudicating Authorities have to see whether any Circular/Instruction of the department is sufficient enough to fulfil the requisite interest of justice in the given set of circumstances. The order of Commissioner (Appeals) under challenge before us is held to have been passed in violation of statutory mandate. Hence it cannot be allowed to attain finality due to Departmental Instructions or Clarifications which have to be within the four corners of parent legislation. The circular was for department to follow and not for the assessee to rely upon, especially when the self assessment of assessee is under shadow of doubt, more so when the department is being denied the proper opportunity to defend its stance. Above all, there cannot be any intention of the Department to issue any instruction which is detrimental to its own interest. As observed above, the only intention of the impugned instruction for fixing monetary limit is to reduce the Department litigation. The instruction cannot be enforced at the cost of prejudice to the issuing authority itself. Rule of law requires a fair opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in the present appeals, the Respondent-Assessee has filed the cross objection and the objection of Monetary Limit was not raised therein. It is impressed upon that raising a new issue in the hearing before the bench is not permissible. Otherwise also period of 45 days as prescribed under Section 129 (A) (4) of Customs Act, 1962 is already over. Learned Authorized Representative has relied upon the decision of Lohiya Machines Limited vs. Collector reported as 1986 (25) ELT 225, with the mention that the appeal against the said decision was dismissed by Hon ble Supreme Court. It is also mentioned that the issue of monetary limit cannot be called as question of law. 3. Learned Authorized Representative further mentioned that the threshold limit in each appeal has dropped below the requisite amount of Rs. 50.00 Lakhs as the number of appeals has increased to be equal to the number of Bills of entry filed by the importer. There were 30 bills of entries filed by one and same importer for importing the same product in relatively same period in the name of Century Metal Recycling Private Limited. Learned Authorized Representative accordingly has requested that for the purpose of mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of binding effect thereof. However, Hon ble Delhi High Court in the case of Geep Industrial Syndicate Vs. CBDT (1987) 166 ITR 88 (Del) has observed as under: It is clear that while a circular of the Board will be binding upon an Income-tax Officer in matters relating to the general interpretation of any provisions of the statute, the circular cannot override judicial decisions rendered on the statute. In fields which are covered by judicial decisions, the circular will not be conclusive even so far as the Income-tax Officer is concerned. In the circumstances, we are of opinion that the circular issued by the Central Board of Direct Taxes dated April 3, 1982, cannot constitute a ground for this court assuming jurisdiction in respect of a matter which clearly falls within the territorial jurisdiction of the Allahabad High Court. As recently pointed out by the Supreme Court in Union of India v. Oswal Woollen Mills Ltd. [1985] 154 ITR 135 (SC), a High Court should be reluctant to interfere in matters where the territorial jurisdiction as well as the convenience of the parties render it appropriate that the assessee should move some other High Court in regard to the relief sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above discussion, it is clear that the Instruction/Circulars are mandatory/binding vis-a-vis the Departmental Officers are concerned. However, vis-a-vis the Superior Courts including Tribunals, the objective is different. The Tribunal as well as Superior Courts have to prioritize the interest of justice. It is the mandate for the Courts to see that none shall be condemned un-heard and that none shall be pre-judicially affected. The Courts/Adjudicating Authorities have to see whether any Circular/Instruction of the department is sufficient enough to fulfil the requisite interest of justice in the given set of circumstances. 7. Now reverting to the facts of the present case, we observe that the present appeal is with respect to one among 30 Bills of Entry arising out of common Master Bill of Lading which got split into various House Bills pertaining to the same Respondent-Assessee. Thus, it is clear that all the Bills of Entry pertain to one importer for import of same commodity i.e. Aluminium Scrap imported more or less during the same period/time. 8. We further observe that the Bills of Entries were self assessed by the importer. However, on verification of value therein, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) (b) (ii) of Customs Act 1962. The provisions read as follows:- 1............. 2.............. 3. The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks [just and proper as follows: (a) confirming, modifying or annulling the decision or order appealed against; or (b) referring the matter back to the adjudicating authority with directions for fresh adjudication or decision, as the case may be, in the following cases, namely: - (i)where an order or decision has been passed without following the principles of natural justice; or (ii)where no order or decision has been passed after re-assessment under section 17; or (iii)where an order of refund under section 27 has been issued by crediting the amount to Fund without recording any finding on the evidence produced by the applicant.] The perusal makes it abundantly clear that where no order (speaking) has been passed by the proper officer after re-assessment under Section 17 of the Customs Act, 1962, but an appeal still is being filed, the Commissioner (Appeals) has to refer the matter back to the proper officer. 12. We are of the opinion that the intention of Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to issue any instruction which is detrimental to its own interest. As observed above, the only intention of the impugned instruction for fixing monetary limit is to reduce the Department litigation. The instruction cannot be enforced at the cost of prejudice to the issuing authority itself. Rule of law requires a fair opportunity of being heard even to Government Authorities/Department herein. Commissioner (Appeals) has wrongly relied upon the decision of Sanjivani Non-ferros Trading Pvt. Ltd. Vs. Commissioner of Customs, Jaipur 2019 (365) ELT 3 (S.C.) as in that case, the enhancement has not under Section 17 of the Customs Act, 1962. 15. We also observe that instead of counting each Bill of Entry for the purpose of calculating threshold monetary limit for filing appeal, it may be seen that all the 30 Bills of Entry pertain to one importer, namely Century Metal Recycling Private Limited for the same commodity i.e. aluminium scrap imported during more or less same period/time. Further, the Commissioner (Appeals) has passed one Order -in -Appeal for all the 57 Bills of Entry though numbered as 59-115/2019. Against the said OIA, this appeal is filed before this Tribunal (CESTAT). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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