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TMI Blog2024 (11) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... , open. - SH. S. S. GARG, MEMBER (JUDICIAL) AND SH. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Shri Pawan Kumar, Authorized Representative Present for the Respondent: Shri Shivang Puri, Advocate ORDER These 19 appeals filed by the Revenue are directed against a common impugned order no. CC(A)/CUS/D-II/ICD/PPG/1473-1491/2019-20 dated 13.03.2020 passed by the Commissioner of Customs (Appeals) New Delhi, whereby the learned Commissioner (Appeals) has set aside the assessment made by the department on enhanced value as per acceptance/admission by the importer/assessee /respondent. Vide the impugned order, the learned Commissioner (Appeals) has disposed of 19 appeals filed by the importer/assessee/respondent namely M/s Golf Leaf Global. Since the issue involved in all these appeals is identical and there is only one importer/assessee/respondent, therefore, all 19 appeals are taken up together for discussion and decision. For the sake of convenience, the facts of the Appeal No. C/60307/2020 are taken up as a lead case. 2. Briefly stated facts of the case are that the importer/respondent M/s Gold Leaf Global had imported various kinds of Mixed lot of 100% Polyester K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order mainly on the ground that the Commissioner (Appeals) did not appreciate that the importer in this case after seeing the contemporaneous import data (prevailing during that period) has agreed to re-determination of value in their reply to query in EDI system and voluntarily forfeited their right of show cause notice and opportunity of personal hearing. As per his acceptance, the value was enhanced by the department and duty was discharged by the importer without showing any protest upto the date of out of charge. The protest, wherever shown by the importer at appeal stage is post clearance from which it cannot be concluded that the payment of duty by the importer was under protest. The department further submits that Section 17(5) of the Customs Act, 1962 precludes passing a speaking order on re-assessment in the case importer confirms his acceptance of re-assessment in writing. The department has also submitted that the various decisions relied upon by the learned Commissioner (Appeals) while setting aside the assessment made by the Deputy/Assistant Commissioner, are not applicable to the facts and circumstances of the present case. 3. Heard both the parties and per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, for the purposes of regulating the filing of appeal, application, revision or reference by the Principal Commissioner of Customs or Commissioner of Customs under the provisions of this Chapter. ** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powered 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 monetary threshold of a singular appeal, rather than the aggregate amount of multiple appeals. This interpretation is founded on the fundamental principle that each appeal represents a distinct cause of action, necessitating sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction 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 not file appeal before the CESTAT, the High Courts and the Supreme Court. In so far as, the CESTAT is concerned the monetary limit prescribed is Rs.50 lakhs. Para 3 of the said circular prescribes that in respect of the pending cases before the CESTAT, the High Courts and the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 monetary limit for filing appeals by departments before CESTAT/High Court/Supreme Court regarding The monetary limit prescribed for filing an appeal before the High Court has been enhanced to Rs. 1 Crore by notification dated 02.11.2023. 3 . The instructions direct not only for not filing an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 above said pronouncements of this Court that, apart from the fact that the Circulars issued by the Board are binding on the Department, the Department is precluded from challenging the correctness of the said Circulars even on the ground of the same being inconsistent with the statutory provision. The ratio of the judgment of this Court further precludes the right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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