The above captioned two appeals arise from common order dated 04.06.2010 of the Central Excise and Service Tax Appellate Tribunal, West Zone Bench, Ahmedabad passed in Appeal No. E/1552 of 2009 and E/1553 of 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 04.05.2011 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 facts stated in brief are that the respondent was engaged in manufacture of Alkyd Resins, filed the claims for refund (1) Rs.61,336/- covering the period from October 2007 to December 2007 and (2) Rs.47,033/- in respect of the period from January 2008 to March 2008. The respondent was claiming refund for service tax paid by it on the basis of notifications issued by the Department read with relevant provisions of the Finance Act.
3.2. In respect of the said refund claims, two show cause notices came to be issued. First was dated 14.11.2008 proposing reduction of refund of Rs.50,997 out of total claim of Rs.61,336/-. The second show cause notice dated 08.12.2008 proposed refund of Rs.39,267/- out of total claim of Rs.47,033/-. These show cause notices were adjudicated and by two orders dated 20.01.2009 refund of Rs.10,359/- and Rs.7,766/- were sanctioned and amounts of Rs.50,977/- and Rs.39,267/- were rejected by the adjudicating authority. The respondent filed appeal before the Commissioner (Appeals) and thereafter further appeal was filed before the Tribunal. The Tribunal held in favour of the respondent assessee. Therefore, the Department is before this court by way of above two appeals.
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 of the said circulars and the monetary limits 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 these two appeals are Rs.50,977/- and Rs.39,267/- respectively, 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 04.05.2011 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)