The above appeal arise from common order dated 14.05.2010 of the Central Excise and Service Tax Appellate Tribunal, West Zone Bench, Ahmedabad passed in Appeal No. ST/417/2009. 1.1 The appellant-Department proposed the following two questions proposing them as substantial question of law:-
“1. In the facts and circumstances of the case, whether CESTAT was right in considering the charges for Terminal Handling and Bill of Lading as Charges covered under Sections 65 (105) (zm), 65 (105) (zzl) or 65 (105) (zzp) despite clear legal provisions given in the Finance Act, 1994 and relevant Notification issued there under?”
2. In the facts and circumstances of the case, whether CESTAT was right in remanding the matter to the Original Authority to freshly decide the issue regarding the charges for Terminal Handling and Bill of Lading?”
2. Notice was issued on 13.04.2011 by this court.
3. We heard learned advocate Mr. Darshan M. Parikh for the appellant and learned advocate Mr. Manish Jain holding brief on behalf of learned advocate Mr. A.P. Nainawati for the respondent.
3.1. The respondent was a partnership firm engaged in export of various goods on commission basis. During the investigation it was found that it had not obtained service tax registration and thereby contravened the provisions of Service Tax Rules, 1994. A show cause notice dated 23.09.2008 was issued to it and came to be adjudicated by order in original dated 15.01.2009, confirming the demand of Rs.33,072/- along with penalty of equivalent amount and interest payable under the law. The Commissioner (Appeals) Central Excise, set aside the said order in original. The Department preferred appeal before the Tribunal which was dismissed bringing the Department before this Court by way of present appeal.
4. At the threshold of hearing learned advocate for the respondent produced two circulars dated 20.10.2010 and 17.08.2010 issued by the Central Excise Department. These circulars provide that in the light of National Litigation Policy and with an object to reduce the burden of litigation, appeal shall not be filed where the amount involved is below a particular monetary limit. In the circular dated 20.10.2010 limit of Rs.2 lakhs has been fixed providing that in the case where duty/tax under dispute is below that limit, the Department would not file the appeal. The `monetary limit' came to be enhanced to Rs.10 lakhs in the subsequent circular dated 17.08.2011. Those circulars were produced before us by the learned advocate for the respondent. Learned advocate for the appellant was not in a position to dispute the instructions contained in the said circulars and the monetary limit prescribed therein.
4.1 We were informed further that no other circular had been issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, authorising the Department to file appeal where the amount is less than Rs.10 lakhs.
4.2 We take notice of the above circulars. They apply in cases of demand for service tax also. It cannot be gainsaid that the Department is bound by its own circulars and the instructions thereof.
5. In view of above circulars, as the amount involved in this appeal is Rs.33,072/-, which is below the limit of Rs. 2 lakhs prescribed in the circular dated 20.10.2010, we are dissuaded from considering the merits of the appeal and find it not necessary to go into the merits.
5.1 Learned advocate for the appellant however submitted that the appeal was filed before the issuance of circular dated 20.10.2010. Even as the appeal was filed before the issuance of circular dated 20.10.2010, it cannot be disputed that when the appeal came up for consideration for the first time before this court on 13.04.2011 the said circular dated 20.10.2010 prescribing the monetary limit of Rs. 2 lakhs was in vogue. Had the appellant pointed out to the court about that and the description of monetary limit therein, this court would not have issued notice. In any view when the circular was in vogue and the monetary limit was applicable on the date of consideration of appeal, the same would apply.
6. In above light, the dispute involved and the questions raised in these appeals need not be decided.
7. Accordingly, we have not considered the merits of the appeal. The appeals are dismissed in view of smallness of the amounts and in light of the prescription of monetary limit in the aforementioned circular dated 20.10.2010, without going into and expressing anything on merits, keeping the questions raised by the Department open to be decided in appropriate case.
(V.M. SAHAI, J.) (N.V. ANJARIA, J.) (SN DEVU PPS)