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Commissioner of Central Excise And Customs, Aurangabad Versus Himalaya Tyres

2016 (3) TMI 403 - CESTAT MUMBAI

Monetary limit - whether departmental internal instructions biding upon the tribunal - Validity of direction issued by the AC to adjudicating authority to implement the appellate order beyond the scope of order in appeal - additional ground sought to be raised in the appeal - eligibility of M/s Himalaya Tyres for threshold limit, applicable to small service-providers under notification no. 6/2005-ST dated 1 st March 2005 - Held that:- The introduction of additional ground of appeal through the r .....

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ts is prompted by the letter of respondent dated 8th January, 2016 placed before us in lieu of representation and seeks dismissal of appeal of Revenue as the amount in dispute is below the threshold limit that allows exercise of discretion in refusing to hear the matter. - We notice that this is so and, additionally, that it is well below the prevailing limit of ₹ 10 lakhs prescribed by the Central Board of Excise and Customs, in its instruction in F.No. 390/Misc./163/2010-JC dated 17 .....

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os. A/85870-85871/2016-WZB/STB - Dated:- 10-2-2016 - M V Ravindran, Member (J) And C J Mathew, Member (T) For the Appellant : Shri AB Kulgod, Asstt. Commissioner (AR) For the Respondent : None ORDER Per CJ Mathew This appeal has been filed by Revenue against order-in-appeal No. AGS(62)34/2010 dated 20 th April 2010 of Commissioner of Central Excise & Customs (Appeals), Aurangabad which annulled the order dated 11 th December 2009 of the original authority, the Assistant Commissioner of Centr .....

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additional ground has been incorporated seeking imposition of penalty under Section 76 of Finance Act, 1994. 2. The introduction of additional ground of appeal through the review undertaken in exercise of powers conferred by section 86(2A) of Finance Act, 1994 is outside the scope of these proceedings. We notice that the impugned order has not touched upon imposition of penalty under section 76 while disposing off the order of the original authority dated 11 th December 2009 against which the a .....

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Having failed to review that, or the subsequent, order of the original authority, there is no provision for objecting to non-imposition of the same by the first appellate authority or to require the Tribunal to step in to fill the perceived breach'. The first appellate authority is required to adjudge upon grievances placed before it by the aggrieved party and therefore, very rightly, did not dwell on that aspect in the impugned order. 3. We are not inclined to go into this appeal on merits .....

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o tax of ₹ 5,60,235/- on the entire invoiced amount of ₹ 50,54,494/- because the exemption was incorrectly availed by them; the exemption allowed abatement of goods sold along with rendering of service and to the extent that it was separately billed in the invoice. 4. Our attention has been drawn in the cross-objection filed by assessee that this dispute was taken to the Commissioner (Appeals) twice before the review that led to the present appeal. Considering that the first order of .....

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the two occasions, it is noticed that a third order-in-appeal was passed by the first appellate authority on 9 th August 2010 modifying an order dated 26 th March 2010 of the Assistant Commissioner of Central Excise (ST), Aurangabad in compliance with the very order that Revenue is now appeal before us. While the original authority confirmed a differential demand to ₹ 30,446/- and penalty of ₹ 43,569/- under section 78 of Finance Act, 1994, the appellate authority reduced the differ .....

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avails that the assessee has been compelled to undergo because of unwillingness of departmental authorities to respect the adjudicatory hierarchy. We can only extend our sympathies and hope that this is an exception and not the norm. We would also desist from making any observations about the apparent lack of communication and coordination within the same establishment that has led to this sorry state of affairs. 6. Our second reason for not deciding on merits is prompted by the letter of respon .....

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nder section 35R of the Central Excise Act, 1944 made applicable to Finance Act, 1994 for filing appeals before the Tribunal. The only exclusions are 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) classification and refunds issues which are of legal and/or recurring nature. Central Government has also decided that, in line with these prescriptions, pending ap .....

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smissal of such cases when listed in their turn. 8. However, the learned Authorised Representative appears to hold a contrary view and made written submission before this Tribunal as under: It is humbly submitted that the stated Policy i.e., the Litigation Policy is to be implemented by the field formations of the Department after examining each appeal where the same is to be withdrawn in terms of the parameters contained in the Policy and thereupon the Chief Commissioner / Commissioner is requi .....

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rs for withdrawal. 9. Doubtlessly, mass listing, preceded by compilation and evaluation, of pending appeals will require the active co-operation and enthusiasm on the part of the Chief Commissioners/ Commissioners and the office of the Chief Commissioner (AR) in the Tribunal. However, in a matter is listed in its turn, even if active enthusiasm be evidently lacking, non-cooperation in disposal of listed matter is highly improper. Authorized Representatives may plead and act for the Commissioner .....

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ion to the CESTAT Procedure Rules, 1982 and cannot refuse to assist the court. 10. Seeking adjournment of a listed matter is subject to discretion of the Tribunal: it is to be sought in a responsible manner and in circumstances that are extraordinary. More so, when the backlog of cases impedes speed delivery of justice. The learned Authorized Representative has, in his submission, sought deferring a decision till some departmental authority has reached a conclusion that the said matter is covere .....

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