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TMI Blog2018 (12) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... ion contending that the tax effect involved in this appeal is below Rs. 50 lakhs, which is the minimum prescribed by the CBIC in its circular dated 11th July, 2018 to enable the department to file and press the appeals before the High Court. In this context, we had heard learned counsel for the parties. 2. Learned counsel Shri Mishra for the department submitted that he has not been instructed to withdraw the appeal, though he agreed that the tax effect involved in this appeal is less than Rs. 50 lakhs. He placed on record a copy of a letter dated 22nd November, 2018 written by the Assistant Commissioner, Raigad conveying to him that the question of withdrawal of any departmental appeal lies with the discretionary powers of the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of the Finance Act, 1944, the Central Board of Indirect Taxes and Customs fixes the following monetary limits below which appeal shall not be filed in the CESTAT, High and Supreme Court: Sr. No. Appellate Forum Monetary Limit 1. CESTAT Rs.20,00,000/- 2. High Courts Rs.50,00,000/- 3. Supreme Court Rs.1,00,00,000/- 2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to apply. Paragraph No.4 of the circular further clarifies that the cases filed in Paragraph No. 1.3 of the instructions dated 17th August, 2011 would be contested irrespective of the prescribed monetary limits. 8. The earlier circular dated 17th August, 2011 also prescribed monetary limits for filing appeals, revision etc. In Paragraph No.3 thereof the circular carved out certain exceptions under which irrespective of the monetary limits, the department would pursue its appeals before the appropriate forum. These exceptions are as under : "(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 virus." 9. Combined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner whether to withdraw certain appeal or not. We do not think that this brings out the correct intention of the CBIC or for that matter correct position in law. As noted, the circular dated 11th July 2018 is issued in exercise of statutory powers and thus has statutory force. The successive circulars lay down the exceptions in which cases irrespective of the monetary limit the appeal may be pursued before the higher forum. The department, however, cannot contend that it is solely within the discretion of the Commissioner whether to apply such policy or not. If the tax effect is less than the monetary limit prescribed, the department can pursue the appeal only it falls in any of the exceptions; not otherwise. This would giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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