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TMI Blog2024 (6) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods in the Bill of Entry No. 9572003 dated 15.11.2020 was found inadequate by the Assessing Officer as compared to the contemporaneous data of import of similar goods. Thereafter, a query was raised by the Assessing Officer in EDI System. The importer in reply to the query on EDI System requested the Assessing Officer to enhance value @ USD 0.35 USD/Kg in view of their previous Bill of Entry No. 9267573 dated 21.10.2020. Thereafter, the Assessing Officer enhanced the assessable value based on unit price requested and suggested by the importer @ USD 0.35/Kg as per previous Bill of Entry of the importer himself. At no stage of assessment the importer informed the Assessing Officer that they were willing to pay duty on enhanced value under protest or requested for speaking order. Accordingly, the impugned bill of entry was given out of charge on 23.11.2020 after payment of duty. One day after i.e. on 24.11.2020, the importer intimated to the Assessing Officer that the duty was being paid on enhanced value under protest. However, since the importer has accepted the value enhancement when query was raised and that too as per his previous BE, he had no right to controvert the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) while stating that declared value can only be rejected on the basis of certain reasons which are not known, appears to be misleading because importer was requested by the Assessing Officer to submit manufacturer's invoice, contract/purchase order, negotiation details, email exchanges, payment details etc in terms of Rule 11 of CVR, 2007 and to explain why the declared value should not be rejected under Rule 12 of CVR, 2007 and re-determined as per the relevant provisions on the basis of the facts that the value declared by the importer was substantially low even from the value of his own Bill of Entry dated 21.10.2020 was assessed on. 2.4 Further, the learned Commissioner (Appeals) while noting that no details of contemporaneous imports were provided by the Assessing Officer, clearly failed to observe that the enhanced unit price @ USD 0.35/Kg for the Bill of Entry dated 15.11.2020 was based on the contemporaneous value derived from the previous Bill of Entry dated 21.10.2020 of the importer, which was cleared a month before. 2.5 The department also submitted that the various decisions relied upon by the Commissioner (Appeals) while setting aside the assessment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain exceptions to the monetary limit for filing of the appeal have been provided, such as: i) Where the constitutional validity of the provisions of an Act or Rule is under challenge. ii) Where Notification/Instruction/Order/Circular has been held illegal or ultra vires. iii) Classification and refund issues which are of legal and/or recurring nature. Further, paragraph 3 of the instructions dated 02.11 2023 requires withdrawal of all pending cases, before the CESTAT, the High Courts and the Supreme Court which are below the monetary limit prescribed therein. 4.5 The learned Counsel for the respondent further submits that the CBIC's instructions dated 02.11.2023 are binding on the department because the said instructions have been issued under Section 131BA of the Customs Act, 1962. Section 131BA of the Act empowers the Board to issue instructions fixing monetary limits for the purpose of regulating the filing of appeal. Relevant extract of Section 131BA of the Act is reproduced herein below: "131BA : Appeal not to be filed in certain cases. (1) The Board may, from time to time, issue orders or instructions or directions fixing such monetary limits, as it may deem fit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cycling Private Limited (supra) is per incuriam for the reasons: (a) Failed to appreciate that the instructions dated 02.11.2023 have been issued under Section 131BA of the Customs Act, 1962 wherein Board has been empowered to issue instructions for the purposes of regulating the filing of appeal. The rulings of the Courts pronounced in respect of the instructions issued under section 151A of the Act for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon or for the implementation of any other provisions of this Act or any other law, has wrongly been referred to and relied upon in the said decision. (b) The decision rendered is prima-facie per incuriam due to its failure to consider and apply the authoritative ruling of the Hon'ble Jammu & Kashmir High Court in the case of CCE & CGST, Jammu vs. M/s Narbada Industries - CEA No. 10 of 2020 (J&K High Court). (c) The Hon'ble Jammu & Kashmir High Court while interpreting the National Litigation Policy and specifically the phrase "monetary limits below which appeal shall not be filed", in its aforementioned pronouncement lucidly elucidated that the said phrase pertains to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Tribunal in the case of Century Metal Recycling Private Limited (supra). 6. We have carefully considered the submissions made by both the parties and perused material on record; and also gone through the various decisions relied upon by both the sides. We find that for reduction of litigation, the CBIC has issued circulars/instructions from time to time instructing the department not to file the appeal and in some cases, if it has already filed, not to press the appeal before higher authorities i.e. the CESTAT, the High Courts and the Supreme Court as the case may be, where the duty amount involved is below the minimum threshold limits respectively prescribed in such circulars. In the present cases, we are concerned with the CBIC's latest circular dated 02.11.2023, wherein it has been specifically prescribed that no appeal shall be filed before the CESTAT below the monetary limit of Rs.50 lakhs and if already filed, will have to be withdrawn. These instructions have been issued in exercise of its power under Section 131BA of the Customs Act, 1962. The perusal of the circular cited supra shows that the same prescribes monetary limit below which the department shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no issue that the appeals filed by the department in the year 2 012 having monitory limits of below 15/20 lakhs. The above provisions and instructions/circulars therefore covers the case of disposal of these appeals on the same ground. The learned Counsel appearing for the respondents has no objection for such disposal. We are, therefore, inclined to do so. 7. However, it is made clear that in view of the specific provision of Section 131BA(2) as reproduced and emphasized above it is necessary to observe that once the appeals are disposed of in view of the above circumstances, based upon such circulars/instructions "it shall not preclude such Commissioner of Customs from filing any appeal, application, revision or reference in any other case involving the same or similar issues or questions of law." Further, in the case of CC Vs. FJM Cylinders Pvt Ltd - 2024 (2) TMI 1325 Delhi High Court, the Hon'ble Delhi High Court has observed in para 2, 3 & 4 as under: "2. Subject Appeal is covered by notification dated 2.11.2023 read with notification dated 17.08.2011 issued by the Central Board of Indirect Taxes and Custom on the subject "Reduction of Government litigation- providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r issued by the Board is to be considered as binding and cannot be deviated even by the department. On that account also the expression 'clearing and forwarding agent' have to be interpreted in the light of the circular." Similarly, the Hon'ble High Court of Punjab & Haryana in the case of Ambuja Cements Ltd vs. Union of India - 2009 (236) ELT 431 (P&H) has held in para 9 & 10 as under: 9. It is well settled that the circulars issued by the Board are binding and aims at adoption of uniform products. In that regard reliance has been rightly placed on the judgment of Hon'ble the Supreme Court in the case of Paper Products Ltd. (supra) and such circulars are binding on the department. Placing reliance on earlier judgments of the Supreme Court in the cases of CCE v. Usha Martin Industries, 1997 (94) E.L.T. 460 (S.C.) = (1997) 7 SCC 47; Ranadey Micronutrients v. CCE, 1996 (87) E.L.T. 19 (S.C.) = (1996) 10 SCC 387; CCE v. Jayant Dalal (P) Ltd., 1996 (88) E.L.T. 638 (S.C.) = (1997) 10 SCC 402 and CCE v. Kores (India) Ltd., 1997 (89) E.L.T. 441 (S.C.) = (1997) 10 SCC 338, Hon'ble the Supreme Court concluded in para 5 as under :- "5. It is clear from the abovesaid pronouncements of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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