The Commissioner Central Excise And CGST South Delhi vs. M/S Elegant Developers
Held
The Court held that the appeal should be closed, keeping the question of law open. This decision was based on the concession by the appellant's counsel that the tax impact was below the monetary limit fixed by the circular dated August 22, 2019. Furthermore, the Court took note of the communication from the Central Board of Indirect Taxes and Customs (CBIC) dated October 19, 2022, which advised against filing a Special Leave Petition (SLP) in similar matters due to the monetary limit. However, the CBIC's communication also suggested that the question of law could be kept open in terms of Section 35R of the Central Excise Act, 1944. Accordingly, the Court followed this approach and closed the present appeal while expressly leaving the question of law open for future consideration.
Facts
The appeal was filed by the Commissioner Central Excise and CGST South Delhi against M/s Elegant Developers. The appellant's counsel conceded that the tax impact in this case was below the monetary limit prescribed by a circular dated August 22, 2019. The Court noted a similar issue in another appeal, CEAC 5/2022, which had been closed. A proposal was made to the Central Board of Indirect Taxes and Customs (CBIC) to file a Special Leave Petition (SLP). The CBIC, in a communication dated October 19, 2022, advised against filing an SLP due to the monetary limit, but suggested keeping the question of law open under Section 35R of the Central Excise Act, 1944.
Key Issues
1. Whether the appeal should be entertained given that the tax impact is below the monetary limit stipulated by the circular dated August 22, 2019? The appellant argued that while the tax impact was below the monetary limit, the Central Board of Indirect Taxes and Customs (CBIC) had advised keeping the question of law open under Section 35R of the Central Excise Act, 1944, in a similar matter. This implies a recognition of the importance of the legal issue despite the low tax impact. The respondent (M/s Elegant Developers) did not present any arguments as none were recorded in the judgment.
Sections Cited
Section 35R
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Cause title — parties, addresses and appearances
O R D E R %
2022 [Physical Hearing/Hybrid Hearing (as per request)]
It is not disputed before us by the learned counsel for the appellant, that the tax impact is below the monetary limit, fixed by circular dated 22.08.2019. 2. We may note, that in a matter involving somewhat similar issue(s) where the appeal [i.e., CEAC 5/2022] has been closed, a proposal was made to the Central Board of Indirect Taxes and Customs [in short “Board”] to file a special leave petition (SLP).
The Board, in its communication dated 19.10.2022, has indicated that an SLP should not be filed, keeping in view, the monetary limit. However, the question of law could be kept open in terms of Section 35R of the Central Excise Act, 1944. CEAC 10/2022
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