Acceptance of CESTAT/Court Orders by Commissioner - Concurrence of CC
IN terms of paragraph 1 of Board's Instruction vide F.No.390/Misc/163/2010-JC dated 17.08.2011, appeals shall not be filed by the Department in the Tribunal/High Court and the Supreme Court in cases where the amount involved is below the prescribed threshold monetary limit even though such orders are against revenue, except the types of cases mentioned in paragraph 3. In terms of paragraph 3 (ii) of Board's Circular No. dated 21.09.2010, all orders which are against revenue but found acceptable to the Commissioners will be put up to the jurisdictional Chief Commissioner for concurrence.
A doubt has arisen whether in the cases which are against the revenue and below the threshold limit, concurrence of the Chief Commissioner is required or not.
The Chief Commissioner, Jawaharlal Nehru Custom House, Mumbai clarifies:
Where, it is decided by the Commissioner not to file appeal solely on the ground of below the threshold monetary limit, concurrence of the Chief Commissioner is not required. However, concurrence of the Chief Commissioner will be required in the cases which are against the revenue and it is proposed by the Commissioner to accept the order on merit, even if they are below the threshold monetary limit .
This means that if the Commissioner writes on the file that he accepts the order of the CESTAT/High Court as he is prevented from filing an appeal because of the monetary limit - then he is the final authority; he need not consult the Chief Commissioner.
Should he make the mistake of writing that the order is acceptable because of the low monetary value and also on merits, the Chief Commissioner comes into picture.
This concept of accepting the order of the Tribunal/High Court is repugnant to judicial discipline. The Commissioner has no choice of accepting or rejecting an order by a higher forum like the Tribunal or High Court; if he is aggrieved, he can file an appeal. At best, He may not accept the orders of his subordinates and the Commissioner (Appeals). DRs routinely submit before the Tribunal that the Department has not accepted the order of the Tribunal or the High Court, because they have filed an appeal.