The above captioned two appeals arise from common order dated 09.07.2010 of the Central Excise and Service Tax Appellate Tribunal, West Zone Bench, Ahmedabad passed in Appeal No. ST No.28/2010 and ST No.29/2010 respectively. 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 12.05.2011 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 respondent-assessee who was engaged in manufacture of alkyd resins filed two refund claims for Rs.79,505/- and Rs.50,531/- covering different periods. On scrutiny of different refund claims, two show cause notices dated 02.02.2009 and 23.04.2009 were issued proposing to reject those claims. The adjudicating authority rejected the refund of Rs.53,578/- out of total claim of Rs.79,505/-. Similarly, second refund claim of Rs.50,531/-, a part claim of Rs.30,165/- was rejected. The Commissioner (Appeals) allowed a refund of service tax to the tune of Rs.44,393/- and Rs.24,982/-. The Department preferred appeal before the Tribunal against the order of Commissioner (Appeals), which was dismissed resulting into the present appeal before this Court by the Department.
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 these two appeals is Rs.45,000/- and Rs.25,000/- 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)