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TMI Blog2024 (6) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of 7 appeals filed by the importer/assessee/respondent namely M/s Elvance Overseas LLP. Since the issue involved in all these appeals is identical and there is only one importer/assessee/respondent, therefore, all 7 appeals are taken up together for discussion and decision. For the sake of convenience, the facts of the Appeal No. C/60055/2021 are taken up as a lead case. 2. Briefly stated facts of the case are that the importer/respondent M/s Elvance Overseas LLP had imported various kinds of "Mixed lot of Polyester Knitted Fabrics". The appellant filed Bill of Entry No. 4349775 dated 10.08.2019 at ICD Ballabhgarh, Haryana on the basis of self assessment of duty on the declared transaction value. The said Bill of Entry was assessed by the Deputy/Assistant Commissioner of Customs, ICD Ballabhgarh at higher value than the declared value. The total re-assessed duty comes to Rs.21,60,043/- on re- determined value by the department and thus, the differential duty of customs comes to Rs.10,70,940/-. The importer at the time of clearance voluntarily accepted the value enhancement of the impugned goods and not asked for any speaking order and not paid enhanced duty under protest. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 perused the material on record. 4.1 The learned Counsel for the respondent raises the preliminary objection that these appeals are not maintainable in view of the directions/instructions/circulars issued by the Ministry/Board prohibiting the filing of appeals below the stipulated monetary threshold limit of Rs.50 lakhs. 4.2 He further submits that in order to reduce litigation and streamline the process of lit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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. *** (5) Every order or instruction or direction issued by the Board on or after the 20th day of October, 2010, but before the date on which the Finance Bill, 2011 receives the assent of the President, fixing monetary limits for filing appeal. application, revision or reference shall be deemed to have been issued under sub-section (1), and the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions 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 separate consideration in determining the applicability of monetary thresholds. 4.11 He further relies on the following decisions of the CESTAT, the High Courts and the Supreme Courts, wherein the Courts have dismissed the appeals of the department due to low tax effect and the said decisions have been passed after considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 Court which are below the monetary limits, process of withdrawal of the appeal would be undertaken by the department. 7. Further, we find that the present appeals do fall within the instructions as prescribed in the circular dated 02.11.2023. We also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 but also withdrawal of pending cases as per the revised limit. 4. Since the subject appeal involves a duty of Rs.40,21,173/- which is the below the monetary limit prescribed and is not covered by the exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, what ..... X X X X Extracts X X X X X X X X Extracts X X X X
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