TMI Blog2013 (4) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. Though the appeal has been admitted, we did not go into the substantial question of law formulated by this Court. For the aforesaid reasons, this appeal is dismissed keeping the questions open to be decided in an appropriate case. - Tax Appeal No. 7 of 2011 - - - Dated:- 10-7-2012 - V. M. Sahai And N. V. Anjaria,JJ. MR RJ Oza M/S Trivedi Gupta JUDGMENT (Per : Honourable MR. Justice V. M. Sahai) 1. This appeal has been admitted on the following substantial questions of law: [i] Whether the Tribunal below committed substantial error of law in holding that in the backdrop of Rule 3 of Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998, having been held to be ultra vires by the Madras High Court in the case of Beauty Dyers Vs. Union of India, reported in 2004 (166) ELT 27 (Mad.), the demand of short-paid duty interest and penalty made under the provision of Rule 9(2) with Rule 96-ZQ of the Central Excise Rules, 1944 and Section 11A(1) of the Central Excise Act, 1944 is not sustainable by overlooking the fact that the declaration of a particular provision as ultra vires by a High Court cannot have any effect beyond t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d two circulars in the present appeal also and on that basis find it not necessary to go into merits of this appeal. 4.1 The Circular dated 20.10.2010 is extracted and reproduced hereinbelow: F.No. 390/Misc./163/2010-JC Ministry of Finance Department of Revenue Central Board of Excise Customs New Delhi 20th October 2010 1. The National Litigation Policy formulated by the Government of India aims to reduce Government litigation so that the Government cases to be a compulsive litigant. The purpose underlying this Policy is to ensure that valuable time of the Courts is spent in resolving pending cases and in bringing down the average pendency time in the Courts. To achieve this, the Government should become an efficient and responsible litigant. 2. It also states that appeals shall not be filed if the matter is covered by a series of judgments of the Tribunal and the High Courts which have held the field and have not been challenged in the Supreme Court. The Policy also lays does that no appeal shall be filed where the assessee has acted in accordance with the long standing practice and also merely because of change of opinion on the part of the jurisdictional o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under the Law in force at the relevant time, no appeal shall be filed before the High Court. 6. Adverse judgments relating to the following should be contested irrespective of the amount involved: a) Where the constitutional validity of the provisions of an Act or Rule is under challenge. b) Where notification/instruction/order or Circular has been held illegal or ultra vires. c) Where audit objection on the issue involved in a case has been accepted by the Department. 7. It may also be noted that, wherever it is decided not to file appeal in pursuance of these instructions, which are aimed solely at reducing government litigation, such cases shall not have any precedent value. In such cases, Commissioners should specifically record that even though the decision is not acceptable, appeal is not being filed as the amount involved is less than the monetary limit prescribed by the Board. Further in such cases, there will be no presumption that the Department has acquiesced in the decision on the dispute issues in the case of same assessee or in case of any other assesses, if the amount involved exceeds the monetary limits. Thus, in case any prior order is being cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest, as the case may be, no appeal shall be filed in the Tribunal. Similarly, no appeal shall be filed in the High Courts if the duty involved does not exceed Rs. 10 lakhs with or without penalty and interest. Further, the Commissionerates shall not send proposal to the Board for filing Civil Appeal or Special Leave Petition in the Supreme Court in a case involving duty upto Rs. 25 lakhs, whether with penalty and interest or otherwise. However, where the imposition of penalty is the subject matter of dispute and the said penalty exceeds the limit prescribed, then the matter could be litigated further. Similarly, where the subject matter of dispute is the demand of interest and the amount of interest exceeds the prescribed limit, then the matter may require further litigation. 3. Adverse judgements relating to the following should be contested irrespective of the amount involved: a) Whether the constitutional validity of the provisions of an Act or Rule is under challenge. b) Where Notification/instruction/order or Circular has been held illegal or ultra vires 4. Several queries connected with application of monetary limits have been raised by the field formations whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat though the appeal was filed on 03.01.2011 and thus before the date of circular, when it came up for admission on 29.02.2012 at that time the circular was in force. 6. In the above view of the matter, we are of the opinion that learned counsel for the appellant ought to have brought to the notice of this Court the circular dated 17.08.2011 and, if this circular had been brought to the notice of this Court, the appeal would not have been admitted. It cannot be gainsaid that the Department is bound by its own circulars. 6.1 In our opinion, since in the instant appeal the amount involved is Rs. 5,50,000/- only, In view of the circular dated 17.08.2011, the appeal could not have been preferred by the Central Excise and Customs Department before this Court. As recorded by us in our order in Tax Appeal No. 1294 of 2011, on being informed from the side of the Department after circular dated 17.08.2011 no other circular has been issued by the Ministry of Finance, Department of Revenue Central Board of Excise and Customs, Government of India, New Delhi, authorizing the Department to file appeals where the amount is less than Rs. 10 lacs. It cannot be gainsaid that the Department is b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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