Manipur High Court
The Commissioner Of Customs ... vs Shri R.K. Swami Singh Aged About 56 Years ... on 11 September, 2025
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
reportable
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Customs Appeal No. 3 of 2024
The Commissioner of Customs (Preventive), North Eastern Region,
Custom House 110 M.G. Road, Meghalaya State Shillong-793001.
...... Appellant/s
- Versus -
Shri R.K. Swami Singh aged about 56 years S/o (Late) Ketuki Sana
Singh, Resident of Sagolband Bijoy Govinda Leikai, P.O. Imphal,
District Imphal West, Manipur-795001.
...... Respondent/s
-AND-
IN THE MATTER OF:
In the CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL (CESTAT) Eastern Zonal Bench, Kolkata, Regional
Bench, Court No. 1.
IN CUSTOMS APPEAL NO. 75171 of 2016
(Arising out of order-in-Appeal No. 37/CUS(A)/GHY/2015 dated
20/11/2015 passed by the Commissioner of Customs and Central
Excise (Appeals), 5th Floor, Customs House, Nilamoni Phukan Path,
Christian Basati, Guwahati-795005).
Shri R.K. Swami Singh aged about 56 years S/o (Late) Ketuki Sana
Singh, Resident of Sagolband Bijoy Govinda Leikai, P.O. Imphal,
District Imphal West, Manipur-795001.
......Appellant
- Versus -
The Commissioner of Customs (Preventive), North Eastern Region,
Custom House 110 M.G. Road, Meghalaya State Shillong-793001.
......Respondent
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With
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The Commissioner of Customs (Preventive), North Eastern Region,
Custom House 110 M.G. Road, Meghalaya State Shillong-793001.
...... Applicant/s
- Versus -
Shri R.K. Swami Singh aged about 56 years S/o (Late) Ketuki Sana
Singh, Resident of Sagolband Bijoy Govinda Leikai, P.O. Imphal,
District Imphal West, Manipur-795001.
...... Respondent/s
B E F O R E
HON'BLE THE CHIEF JUSTICE MR. K. SOMASHEKAR
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Appellant/s :: Mr. N. Brojendro Singh, Adv.
For the respondent/s :: Mr. Nihar Dasgupta, Adv.
Mrs. I. Bimola, Adv.
Date of Hearing :: 27.08.2025
Date of Order :: 11.09.2025
ORDER (CAV)
[A. Guneshwar Sharma, J.]
[1] Heard Mr. N. Brojendro Singh, learned counsel for the appellant and
Mr. Nihar Dasgupta, learned counsel along with Mrs. I. Bimola, learned counsel for
the respondent on the question of maintainability of the present appeal in terms of
Instruction dated 02.11.2023 issued by Central Board of Excise & Customs [in
short, CBEC], Department of Revenue, Ministry of Finance, Government of India
whereby the minimum monetary limits for preferring appeal has been laid down.
For the High Court, the minimum threshold monetary value for filing appeal is Rs.1
crore while the seized goods are valued as ₹ 49,74,605/- (Rupees Forty Nine
Lakhs Seventy Four Thousand Six Hundred and Five) only.
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[2] The present appeal has been preferred against the Final Order dated
29.04.2024 passed by the Customs, Excise and Service Tax Appellate Tribunal
(CESTAT), Eastern Zonal Bench Kolkata, Regional Bench Court No. 1 in Customs
Appeal No. 75171 of 2016 against the order dated 30.11.2015 of the Commissioner
(Appeals), Customs and Central Excise, Guwahati. The appeal filed by the
respondent was allowed by setting aside the order of confiscation and imposition
of penalty. It was also held that the authority could not prove the factum of
smuggled gold.
[3] The brief facts of the case are that on 20.06.2014, the respondent
herein was intercepted by the Officers of Imphal Customs at Luwangshangbam
near NRL Petrol Pump along National Highway No. 39 at around 2:00 pm and
found 12 pieces of gold biscuits, total weighing 2002.26 grams approximately and
worth of ₹ 49,74,605/- (Rupees Forty Nine Lakhs Seventy Four Thousand Six
Hundred Five) from his possession. As the respondent was not having any
document for the illicit importation and without payment of customs duty, the gold
was seized under Section 110(1) of the Customs Act, 1962. On interrogation, the
respondent disclosed that the gold was handed over to him by one Shri
Ramaswami at Moreh Bazar on 20.06.2014 for the purpose of transporting from
Moreh to Guwahati and promised him to pay ₹ 12,000/- (Rupees Twelve
Thousand) only as carrier charges.
[4] Under Section 104 of the Customs Act, 1962, the respondent herein
was arrested and produced before the Chief Judicial Magistrate, Imphal West/East
on 21.06.2014 and remanded in judicial custody till 05.07.2014.
[5] On 14.11.2014, the Additional Commissioner, Customs (Preventive),
NER, Shillong issued Show Cause Notice to the respondent to submit explanation
within 30 (thirty) days as to why the seized gold biscuits should not be confiscated
U/S 111(b)(d) of Customs Act, 1962 and as to why penalty should not be imposed
upon him under Section 112(b)(ii) of the Customs Act, 1962. However, the
respondent herein failed to file reply to the Show Cause Notice.
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[6] The Additional Commissioner (Preventive), NER, Shillong directed
the respondent herein to pay a penalty of ₹10,00,000/- (Rupees Ten Lakhs) only
under Section 112(b)(ii) of the Customs Act, as the seized gold biscuits has been
illegally imported from Myanmar to India via Moreh in violation of Section 7(i)(b)(c)
of the Customs Act, 1962.
[7] Being aggrieved by the Order-in-Original dated 31.07.2015, the
respondent herein filed an appeal being Order-in-Appeal No. 37/CUS(A)/GHY/15
before the Commissioner (Appeals), Customs and Central Excise, Guwahati and
the same was rejected vide order dated 30.11.2015 and the Order-in-Original
dated 31.07.2015 was upheld.
[8] Being aggrieved, the respondent herein filed an appeal against the
Order-in-Appeal before the Customs, Excise & Service Tax Appellate Tribunal
(CESTAT), Eastern Zonal Bench Kolkata, Regional Bench, Court No. 1 and vide
order dated 29.04.2024, the Customs Appeal No. 75171 of 2016 was allowed with
the observation that provisions of Section 123 of Customs Act, 1962 are not
applicable, as it was not established that the gold is of foreign origin and the penalty
imposed on the respondent herein is not sustainable under Section 112(b)(ii) of the
Customs Act, 1962. It was further held that there was no material to substantiate
the charge of smuggled gold bars against the respondent herein.
[9] By the present appeal, the appellant prayed that the impugned order
dated 29.04.2024 passed in Customs Appeal No. 75171 of 2016 be set aside and
dismissed.
[10] It may be noted that the Ministry of Finance, Government of India
issued INSTRUCTION dated 11.08.2011 prescribing financial limits for preferring
appeals before Supreme Court, High Court and CEGAT as ₹ 25,00,000/- (Rupees
Twenty Five Lakhs), ₹ 10,00,000/- (Rupees Ten Lakhs) and ₹ 5,00,000/- (Rupees
Five Lakhs) respectively and the same reads as follows:
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"INSTRUCTION
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
New Delhi 17th August 2011
Sub:- Reduction of Government litigation - providing monetary limits
for filing appeals by the Department before CESTAT/High Courts
and Supreme Court - Regarding.
In exercise of the powers conferred by Section 35R of the Central
Excise Act, 1944 made applicable to Service Tax vide Section 83 of
the Finance Act, 1994 and Section 131BA of the Customs Act, 1962
the Central Board of Excise & Customs (hereinafter referred to as the
Board) fixes the following monetary limits below which appeal shall
not be filed in the Tribunal, High Court and the Supreme Court:
Sl. No. Appellate Forum Monetary limit
1. CESTAT Rs. 5,00,000/-
2. HIGH COURT Rs. 10,00,000/-
3. SUPREME COURT Rs. 25,00,000/-
2. For ascertaining whether a matter would be covered within or
without the aforementioned limits, the determinative element would
be duty/tax under dispute. To illustrate it further in a case involving
duty of Rs. 5 lakhs or below with equal penalty and interest, as the
case may be, no appeal shall be filed in the Tribunal. Similarly, no
appeal shall be filed in the High Courts if the duty involved does not
exceed Rs. 10 lakhs with or without penalty and interest. Further, the
Commissionerates shall not send proposal to the Board for filing Civil
Appeal or Special Leave Petition in the Supreme Court in a case
involving duty up to Rs. 25 lakhs, whether with penalty and interest or
otherwise. However, where the imposition of penalty is the subject
matter of dispute and the said penalty exceeds the limit prescribed,
then the matter could be litigated further. Similarly where the subject
matter of dispute is the demand of interest and the amount of interest
exceeds the prescribed limit, then the matter may require further
litigation.
3. Adverse judgments relating to the following should be contested
irrespective of the amount involved:
(a) Where the constitutional validity of the provisions of an act or Rule
is under challenge.
(b) Where Notification/Instruction/Order or Circular has been held
illegal or ultra vires.
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4. Several queries connected with application of monetary limits have
been raised by the field formations which were considered by the
Board and are being clarified as below:
Issues Clarifications
Whether duty involved In a case where a part of
mentioned in the the duty demanded is not
Instruction dated disputed and is paid and
20.10.2010 refers to the outstanding duty under
duty outstanding to be dispute is less than the
collected or the total monetary limit prescribed
duty demanded for by the Board, no appeal
deciding the threshold shall be filed. In other
limit prescribed. words, monetary limit shall
apply on the disputed duty
and not on the total duty
demanded in a case.
Whether monetary It is clarified that the
limits could apply to monetary limits being
cases of refund. prescribed by the Board
would apply to cases of
refund as well.
Whether applications The limit specified herein
being filed by the will not be applicable to
Department before application filed before the
office of Joint Joint Secretary (Revision
Secretary (Revision Application).
Application) would also
be covered under the
stipulation of monetary
limits.
Whether exclusion of The intention was to apply
audit objections the exclusion clause
mentioned in para 6(c) mentioned at para 6(c) only
of Instruction dated to disputes arising out of
20.10.2020 would revenue audit objections
cover internal audit accepted by the
objection cases also or Department. It has now
whether they would be been decided to delete the
limited to cases of said exclusion clause (refer
revenue audit alone. para 3 of this Instruction).
Therefore, in all cases of
audit objections accepted
by the Department, while
protective demands may
continue to be issued but
the same could be
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subjected to monetary
limits for filing appeal in the
Tribunal, High Courts and
the Supreme Court.
5. The revised monetary limits shall come into force from 01.09.2011.
6. This Instruction is in continuation of earlier instruction of even
number dated 20.10.2020 and seeks to revise the monetary limits,
exclusion clauses and clarifies the doubts raised by the filed
formations on this issue.
F.No. 390/Misc./163/2010-JC
(Sunil K. Sinha)
Director (R)"
[11] The Finance Ministry issued another INSTRUCTION dated
02.11.2023 further enhancing the financial limits for preferring appeal to ₹ 2
crore, ₹ 1 crore and ₹ 50 lakhs for the Supreme Court, High Court and CESTAT
respectively and in Para 2, three exceptions are carved out for preferring appeal
notwithstanding the financial limits. The Instruction dated 02.11.2023 reads as
follows:
"F.No. 390/Misc/30/2023-JC
Ministry of Finance, Department of Revenue
Central Board of Indirect Taxes & Customs
(Judicial Cell)
********
'B' wing, 4th Floor, HUDCO VISHALA Building
Bhikaji Cama Place, R.K. Puram, New Delhi-66
Date: 02.11.2023.
INSTRUCTION
To,
1. All Pr. Chief Commissioners/Chief Commissioners/Pr.
Commissioners/Commissioners of Customs/Customs
(Prev.)/GST & CX;
2. All Pr. Director Generals/Directors Generals under CBIC;
3. Chief Commissioner (AR); Commissioners (Legal) CBIC/
Directorate of Legal Affairs.
4. [email protected]
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Subject: Reduction of Government litigation - providing monetary
limits for filing appeals by the Department before CESTAT, High
Courts and Supreme Court - regarding.
In exercise of the powers conferred by Section 131 BA of the
Customs Act, 1962 and in partial modification of earlier instruction
issued from F. No. 390/Misc/163/2010-JC dated 17.08.2011, the
Central Board of Indirect Taxes & Customs (hereinafter referred to as
the Board) fixes the following monetary limits below which appeal
shall not be filed in the CESTAT, High Court and the Supreme Court:
Sl. No. Appellate Forum Monetary limit
1. SUPREME COURT Rs. 2 Crore
2. HIGH COURT Rs. 1 Crore
3. CESTAT Rs. 50 Lakh
2. Adverse judgments relating to the following should be
contested irrespective of the amount involved:
(a) Where the constitutional validity of the provisions of an Act
or Rule is under challenge;
(b) Where Notification/Instruction/Order or Circular has been
held illegal or ultra vires;
(c) Classification and refund issues which are of legal and/ or
recurring nature.
3. Withdrawal process in respect of pending cases in above
forums, as per the above revised limits, will follow the current practice
that is being followed for the withdrawal of cases from the Supreme
Court, High Courts and CESTAT.
(Bhagwat Prasad)
Deputy Secretary, Review
Email: [email protected]"
--------------
[12] Mr. Nihar Das Gupta, learned counsel of the respondent has
submitted the following points that the appeal is not maintainable in the present
form:
1) Maintainability :
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The present appeal is not maintainable in view of CBIC Instruction No.
390/Misc./30/2023/JC dated 02.11.2023, which prescribes a monetary
threshold of Rs. 1 crore for filling appeals before the Hon'ble High Court.
The seizure value in the present case is ₹49.74 lakhs, which falls well below
the prescribed limit.
2) Binding nature of the circular.
It is settled law that circulars issued by the Board in exercise of statutory
powers are binding on the Revenue. The Hon'ble Supreme Court in CCE v.
Ratan Melting & Wire Industries [(2008) 13 SCC 1] (Constitution Bench) has
categorically held that departmental circulars are binding on the Revenue.
Consequently, the appellant cannot act in derogation of the latest binding
Instruction issued by the CBIC.
3) No application of earlier Circulars.
The present case is governed exclusively by the latest CBIC Instruction
dated 02.11.2023 prescribing the monetary limit of ₹1 crore. Reliance on
earlier instructions prescribing lower limits is wholly misconceived, as once
a fresh instruction is issued, it overrides and supersedes all prior circulars &
Instruction on the same subject.
4) Circulars cover all revenue litigation.
That it is further submitted that the CBIC's Instruction dated 02.11.2023
prescribing monetary limits is of general application and covers all types of
Revenue litigation involving monetary consideration, without distinction
as to whether the matter pertains to seizure, assessment, refund, drawback,
penalty or any other proceeding. The object of the circular is to reduce
frivolous litigation and avoid burdening the Courts with matters of low
revenue effect. The Hon'ble Supreme Court, in a catena of decisions
including Commissioner of Customs v. Indian Oil Corporation Ltd. [(2004) 3
SCC 488] and CCE v. Ratan Melting & Wire Industries [(2008) 13 SCC 1],
has consistently held that such circulars are binding on the Department and
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must be applied in their true spirit across all categories of cases where the
dispute is only of monetary value.
5) No substantial question of law raised.
That apart from being barred by the monetary limit, the appeal does not raise
any substantial question of law. The issues have already been conclusively
adjudicated by the learned Tribunal, which is the final fact-finding
authority. Under Section 129 B (4) of Customs Act, 1962, the findings are
factual in nature and do not give rise to any debatable or substantial legal
issue under Section 130 of the Customs Act, 1962.
6) Judicial precedents.
That the Judicial pronouncement, including Commissioner of Customs v.
Indian Oil Corporation Ltd. [(2004) 3 SCC 488] and CIT v. Hero Cycles Pvt.
Ltd. [(2015) 379 ITR 347(SC)], have consistently held that Revenue is
bound by the circulars/ Instructions of the Board and appeals contrary to
such instructions or not involving a substantial question of law are liable to
be dismissed at the threshold.
[13] Case Laws referred by the respondent :
(a) In the High Court of Calcutta in the case of CEXA/10/2020, Commissioner
of CGST AND CEX, Bolpur Commissionerate vs M/S. Steel Authority of
India Limited which held that
"2. Learned counsel for the appellant fairly states that the tax effect involved
in the present appeal is much below the limit fixed under circular
No.F.No.390/Misc/30/2023-JC dated 02.11.2023 issued by the Ministry of
Finance, Department of Revenue, Central Board of Indirect Taxes &
Customs. Therefore, this appeal deserves to be dismissed.
3. In view of the aforesaid circular, the appeal (CEXA/10/2020) is
dismissed."
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(b) In the High court of Calcutta in the case of CUSTA/12/2022, Commissioner
of Customs (Preventive), Kolkata vs Shri Gulshan Ahmed Barbhuiya
which held that
"2. Learned counsel for the appellant states that the tax effect involved in
the present appeal is below the limit fixed by circular
No.F.No.390/Misc/30/2023-JC dated 02.11.2023 for filling appeals by the
department and as such, the appeal may be dismissed in view of the
aforesaid circular.
3. Learned counsel for the respondent does not dispute that the tax effect
involved is below the limit fixed under the aforesaid circular for filling
appeals.
4. In view of the aforesaid, the appeal is dismissed in view of the aforesaid
circular dated 02.11.2023. "
(c) In the High Court of Gujarat in the case of R/TAX APPEAL NO. 884 of 2007
With R/TAX APPEAL NO. 885 of 2007 The Commissioner of Central Excise,
Ahmedabad vs Sinhal Brothers held that
"5. On perusal of the notifications, it is clear that the Tax Appeal would be
maintainable only if there is a question of constitutional validity of the
provision of the Act or the Rules is under challenge or the cases where the
Notification/Instruction/Order/Circular is held to be illegal or ultra vires.
6. In the facts of the present case, none of the above conditions are fulfilled
and therefore, in view of the Instruction, the appeals would not be
maintainable in spite of the instructions of the respondent authorities to the
learned advocate for the appellant to proceed with matter on merits. We,
therefore, decline to answer the questions which are framed while admitting
the appeals. The appeals are accordingly dismissed."
(d) In the High Court of Delhi in the case of CUSAA 88/2023, Principal
Commissioner of Customs vs M/S. Linear Technologies India Pvt. Ltd., it
was held that
" 17. For the purposes of determining the threshold limit, it would only be the
duty element which would be taken into account and the same could not be
clubbed with penalty and redemption fine.
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18. In cases involving duty, fine, penalty and interest, the decisive element
would only be duty. However, in cases where duty is not in issue and only
fine and penalty are in issue then they would cumulatively be the decisive
factor for determining the applicability of threshold limit.
19. Since the duty element involved in the subject appeal is less than the
threshold limit, we are of the view that the appeal would not lie in view of the
said instructions. The same is accordingly dismissed on the ground of low
tax effect."
(e) In the High Court of Delhi, in the case of CUSAA 135/2022 & CM APPL.
41288/2022, The Principal Commissioner of Customs, ACC Imports, New
Delhi vs. M/S Salasar Synthetics, it was held that:
"5. By instruction date 20.10.2010, the Central Board of Indirect Taxes had
fixed a monetary limit below which appeals were not to be filed by the
Department before the Tribunal, High Court or the Supreme Court, as the
case may be. The monetary limit has undergone increased from time to time.
The latest instruction dated 02.11.2023 prescribed a monetary limit of Rs. 1
Crore for appeal to the High Court. The instruction further state that process
has to be initiated for withdrawal of pending cases which are below the
monetary limit.
6. In the subject case, the issue involved is with regard to redemption, fine
of Rs. 40 Lakhs and penalty of Rs. 20 lakhs which cumulatively is below the
threshold limit. Consequently, we are of the view that the appeal being below
the monetary limit as prescribed by the instruction is not maintainable and is
accordingly dismissed on the ground of low tax effect."
(f) In CEXA/9/2021, Commissioner of Service tax, Kolkata v. Sourav Ganguly
of the High Court of Calcutta, it was held that
"That apart, the learned writ Court while allowing the writ petition by order
dated 30th June, 2016 had quantified the quantum of interest at the rate of
10%. The factual matrix has been thoroughly examined by the Tribunal and
interest has been directed to be paid only from the date on which the amount
was recovered till it was deposited with the Registrar General of this Court
and, therefore, we find that there can be no error in directing such payment
of interest. That apart we note that the total interest which was sanctioned
and refunded to the respondent/assessee is Rs.59,85,338/-. If that be so,
then the present appeal will be hit by the monetary limit fixed by the CBIC in
its Circular dated 22nd August, 2019 which fixed the monetary limit of Rs.1
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crore for the revenue to pursue appeals before this Court against the order
passed by the Tribunal. Therefore, on that score also we are of the view that
the revenue is liable to be non suited. That apart there is nothing on record
to indicate that the case on hand would fall within any one of the exception
which have been curved out in the circular issued by the CBIC.
Thus, for the above reason we find that there is no question of law arising
for consideration in this appeal. Accordingly, the appeal ((CEXA/9/2021)
fails and is dismissed."
(g) In the case of Commissioner of Customs (Import) vs. ATLAS Merchantile
Pvt. Ltd., 2024 (387) E.L.T. 262 (S.C.), it was held that :
"1.Learned senior counsel appearing for the appellant(s) submitted that in
view of the recent instructions dated 02.11.2023 issued by the Ministry of
Finance, Department of Revenue, Central Board of Indirect Taxes and
Customs (Judicial Cell), the monetary limit in so far as appeals filed before
the Supreme Court from the judgments arising from Customs Excise and
Service Tax Appellate Tribunal (CESTAT) has been raised to
Rs.2,00,00,000/- (Two Crores). That in the instant case, the tax effect is of
only Rs.75,00,000/- (seventy-five lakhs). Hence, an appropriate order may
be made in these appeals keeping open the question of law, if any, to be
agitated in any other subsequent assessment year in so far as the very
assessee is concerned.
2. Submission of learned senior counsel for the appellant(s), Ms. Sonia
Mathur, is placed on record.
3. In view of the low tax effect, the civil appeals are dismissed."
(h) In the HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE
HONOURABLE MR. JUSTICE SATHISH NINAN & THE HONOURABLE
MR.JUSTICE P. V. BALAKRISHNAN TUESDAY, THE 12TH DAY OF
NOVEMBER 2024 / 21ST KARTHIKA, 1946 CUS.APPEAL NO. 17 OF 2018, it
was held that:
"7. The main part of Section 125 of the Customs Act reads thus: "125. Option
to pay fine in lieu of confiscation.--(1) Whenever confiscation of any goods
is authorised by this Act, the officer adjudging it may, in the case of any
goods, the importation or exportation whereof is prohibited under this Act or
under any other law for the time being in force, and shall, in the case of any
other goods, give to the owner of the goods or, where such owner is not
known, the person from whose possession or custody such goods have
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been seized, and option to pay in lieu of confiscation such fine as the said
officer thinks fit: Gold is not a prohibited good under the Act. Section enables
payment of redemption fine as an option in lieu of confiscation, to redeem
the goods confiscated. The redemption fine cannot be more than the market
price of the goods. The circulars referred to above mention the reason for
fixing such a monetary limit as "Reduction of Government Litigation."
8. The Apex Court in Commissioner of Customs, Amritsar v. Harish Chander
(Civil Appeal No.8690 of 2011), took into consideration the value of the
goods at the time of seizure and held that it being below the threshold fixed,
no appeal would lie. The Allahabad High Court in the Commissioner of
Customs v. Disha Tulsiani (Neutral Citation No. 2024 : AHC:48658-DB) has,
while dealing with a case of confiscation gold, adopted the same view.
9. In Cust. Appeal No.3/2008, between Commissioner of Customs, Amritsar
and Customs, Excise and Service Tax Appellate Tribunal, the High Court of
Punjab and Haryana at Chandigarh, held the goods involved were gold.
Therein also, the High Court relying on the ceiling limit regarding the
valuation, held the appeal to be not maintainable. The said judgment was
affirmed by the Apex Court in Civil Appeal No.8690 of 2011. A similar view
was adopted by the Calcutta High Court in Cust. Appeal No.8/2016 between
Commissioner of Customs(Preventive), WB, Customs House and Nitya
Gopal Biswas and Anr."
(i) CUSTOM APPEAL No. - 1 of 2020/CUSTOM APPEAL No. - 2 of
2020/CUSTOM APPEAL No. - 3 of 2020/CUSTOM APPEAL No. - 4 of
2020/CUSTOM APPEAL No. - 5 of 2020 Hon'ble Allahabad High Court
"8. While the confiscated gold was valued at more than Rs. 1 crore at the
same time that was apportioned amongst three assessees namely Ms.
Disha Tulsiani, Sri Nirmal Tulsiani and Sri Ashok Kumar Talhani.
9. Thus individual dispute in each of the appeals is far below the monetary
limit of 1 crore. On the earlier dates, we allowed learned counsel for the
revenue to file supplementary affidavit to bring on record the revenue effect
involved in each of the appeals. While an affidavit has been filed by the
revenue on 18.11.2023, it does not bring on record the revenue effect
involved in each of the appeals. In fact, in paragraph 6 of the affidavit, it has
been stated as below :- 6. That in view of the direction given by the Court
vide its orders dated 20.09.2021 and 02.11.2023 the present affidavit is
being filed to bring on record the fact that the objection regarding
maintainability of the appeal raised by the Respondent on the ground of duty
component being less than the amount prescribed by the Board for filing
appeals before the Hon'ble High Court has to be turned down in view of the
fact that the question of quantification of duty does not arise in the present
case as no duty what so ever was demanded/confirmed in the present case.
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10. Clearly despite time granted, no disclosure has been made by the
revenue to establish that the revenue implication in each or any of the
appeals exceeds the monetary limit of 1 crore.
11. Since the order passed by the Tribunal is clearly in favour of the assesse
and there is no cross appeal filed by revenue, no justification or occasion
survives for this Court to allow the revenue the luxury of maintaining the
present litigation against its own stated litigation policy.
12. For the above reason, the present appeal and the connected appeals
are dismissed being below monetary limit. No order as to costs."
(j) In Commissioner of customs, export, New Delhi ICD, TKD Vs Balaji
Overseas, Civil Appeal Nos. 9032-9034 of 2019, 2024(389)E.L.T. 289(S.C.)
"1. It is stated at the bar that in terms of the latest circular dated 2-22-2023,
the monetary limit has been enhanced to Rs. 2 crores. The appeal would
have to be disposed of having regard to the said threshold limit as the
amount in dispute in the instant cases is only Rs, 1,28,73,481/- (Rs. One
crore, twenty eight lakhs seventy three thousand, four hundred and eighty
one only)
2. In the circumstances, the appeal are dismissed owing to low tax effect."
(k) In Civil Appeal No. 4835 of 2011, Commissioner of Customs, Chennai Vs
Godavari Drugs Ltd., 2014(387) E.L.T. 3(S.C.)
"1. Shri Arijit Prasad, Learned Senior Counsel appearing for the appellant-
Department submitted that in view of the Circular dated 2-11-2023 issued
by Ministry of Finance, Department of Revenue, Central Board of Indirect
Taxes & Customs, the monetary limit for matters before the Supreme Court
has been raised to Rs, 2 Crores even in the cases pertaining to indirect
Taxes and Customs. Hence an appropriate order may be made in this
appeal.
2. Submission of Learned Senior Counsel is place on record.
3. Consequently, the appeal stands dismissed on account of the aforesaid
reason owing to low tax effect."
[14] Per contra, Mr. N. Brojendro, the learned counsel of the appellant
submitted that Customs Duty/Tax dispute may arise only in cases of duty payable
where goods are legally imported and subjected to assessment of customs duty
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upon filling the Bill of import, etc. It is also reiterated that the monetary limit for filling
Appeal has been prescribed only for such revenue matters/ disputes involving
realization of duty and others levies.
[15] The learned counsel further submitted that the issue involved in the
present Appeal is not customs duty/tax dispute but a case of outright smuggling of
gold and confiscation thereof as well as imposition of penalty. The core issue
involved in the present case is illegal importation of gold in violation of the Customs
Act, 1962 which is liable to be confiscation by the authorities under the said Act. It
is submitted that such cases are not covered within the monetary limit prescribed
under the Circular F.No. 390/Misc./30/2023-JC dated 02.11.2023 (Annexure X/3)
issued by the central Board of Indirect Taxes & Customs.
[16] In a similar case before the Hon'ble High Court of Meghalaya in the
case of The Commissioner Of Customs vs . Daleep Kumar Verma & Ors
Meghalaya High Court, Cus./Appeal.No.1 of 2024 with MC (Cus.Appeal) No. 2
of 2014 where the case also pertains to smuggling of gold and confiscation thereof
and the confiscated goods were valued at ₹ 1,59,15,033/- (Rupees One Crore Fifty
Nine Lakhs Fifteen Thousand and Thirty Three) only by the original adjudicating
authority. The Hon'ble Court of Meghalaya rejected the point raised against the
maintainability of the Appeal and held as follows :-
"First of all, the intent and purpose of the Circular is very plain. Where
realisation of duty and other levies are involved, the Government would only
challenge any adverse order, if on success in the proceedings, it would be
able to realize an amount equal to or above the threshold limit indicated in
the notification. Any realization below the threshold limit did not seem to
have been considered significant by the Government. This notification
clearly would not cover cases of smuggling where orders for confiscation
and imposition of fine, penalty etc. are provided, without any right given to
the delinquent to redeem the goods upon payment of duty, penalty etc. This
is a case where no such right has been given.
Therefore, if the revenue succeeds before us the order-in- original is likely
to be restored resulting in absolute confiscation of the goods along with other
penalties. If the respondents succeed, it would result in affirmation of the
order of the Tribunal. So if one possible result is absolute confiscation of the
goods without any right of redemption on payment of duty, penalty etc. there
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is no question of the appeal being dismissed on the ground that the duty
payable would be less than Rs.1 crore.
For all those reasons, the point of maintainability does not succeed and it is
hereby rejected."
[17] The learned counsel of the appellant further submitted that the
circular dated 02.11.2023 prescribing monetary limit for filling appeal by the
customs authorities does not cover the present case as the issue involved is
smuggling of gold and order has been issued by the competent authority for
confiscation of the goods as well as for imposition of penalty without any right to
the delinquent/respondent to redeem the goods upon payment of duty, penalty etc.
(U/S 125 option to pay fine in lieu of confiscation under Customs Act 62).
[18] We have perused the materials on record, the submissions at bar, the
case law referred by parties and specially the Instruction dated 02.11.2023 issued
by the Ministry of Finance, Government of India prescribing monetary limits below
which appeal shall not be filed in the CESTAT, High Court and Supreme Court.
[19] It may be noted that Central Board of Excise & Customs [in short,
CBEC], Department of Revenue, Ministry of Finance, Government of India issued
an INSTRUCTION dated 17.08.2011 stipulating that no appeal shall be filed before
CESTAT, High Courts and Supreme Court, if the monetary limits are below
₹5,00,000/- (Rupees Five Lakhs), ₹10,00,000/- (Rupees Ten Lakhs) and
₹25,00,000/- (Rupees Twenty Five Lakhs) respectively. However, in Para 3 of the
Instruction, it has been mentioned that 'Adverse judgments' relating to two aspects-
(a) Where the constitutional validity of the provisions of an Act or Rule is under
challenge; and (b) Where the Notification/Instruction/Order or Circular has been
held illegal or ultra vires. Except for these two conditions, no appeal lies against
any order if the amount involved is below the monetary limits prescribed by the
Instruction.
[20] CBEC issued another INSTRUCTION dated 02.11.2023 in partial
modification of the earlier Instruction dated 17.08.2011 thereby increasing the
monetary limits of filing appeal before CESTAT, High Courts and Supreme Court,
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above ₹50,00,000/- (Rupees Fifty Lakhs), ₹1,00,00,000/- (Rupees One Crore) and
₹2,00,00,000/- (Rupees Two Crore) respectively. Hence, ₹50 lakh, ₹1 Crore and
₹2 Crore are the new monetary limits threshold for filing appeal. These instructions
are issued from time to time to weed out appeal as a measure to reduce
government litigation at all levels. Para 2 of the Instruction dated 02.11.2023
prescribes three types of 'Adverse judgments' which can be contested irrespective
of the monetary limits so fixed: (a) Where the constitutional validity of the provisions
of an Act or Rule is under challenge; (b) Where the Notification/Instruction/Order
or Circular has been held illegal or ultra vires; and (c) Classification and refund
issues which are of legal and/or recurring nature. Para 3 enables withdrawal of the
pending cases in the fora as mentioned above as per the revised limits, thereby
implying that the new limits shall also be applicable in the pending cases. In other
words, Para 3 is in tune with the government litigation policy of eliminating low
amount cases. Para 2 adds one more condition apart from the two mentioned in
the earlier Instruction dated 17.08.2011. New Instruction of 2023 sets higher
monetary limits of ₹50 lakh, ₹1 Crore and ₹2 Crore for filing appeals in the Tribunal,
High Courts and Supreme Courts respectively and Para 2 prescribes three
situations where appeal can be preferred irrespective of the amount involved.
[21] In the case of K. Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engineering: (1997) 3 SCC 571, Hon'ble Supreme Court held that the
executive instructions issued by the Government conferred a right to the
employees of private schools to claim parity of pay scale at par with the government
school teacher. In other word, the executive instructions issued by the government
is binding on the authority. Further in the case of Karnati Ravi v. Commr. Survey
Settlements & Land Records, (2018) 12 SCC 635, it is held that "...... it is well
within the powers of the executive under Article 162 of the Constitution to provide
for the required instructions with regard to the procedure for selection, so long as
they do not come in conflict with the Rules." From the above decisions, it is clear
that the executive instructions are binding on the authority. Thus, we are in
agreement with the submission of Mr. Nihar Das Gupta, learned counsel for the
respondent that executive instructions issued by CBEC are binding on the authority
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under Articles 73 and 162 of the Constitution of India. The Instruction dated
02.11.2023 will hold the field for filing appeal by fixing minimum threshold monetary
limits for filing the appeal with the three exceptions. The maintainability of appeal
under Customs Act has to be examined under this Instruction.
[22] We have minutely gone through the judgments cited by Mr. Nihar Das
Gupta, learned counsel for the respondent. All these decisions consistently held
that the appeals are not maintainable due to the monetary limits fixed by the
Instruction dated 02.11.2023. None of the cases falls within the three exceptional
categories as mentioned in Para 2.
[23] On the other hand, Mr. N. Brojendro, learned counsel for the appellant
refers to the decision of Meghalaya High Court in Cus Appeal No. 1 of 2024 & order
dated 22.10.2024, where it has been held that the Instruction dated 02.11.2023
prescribing monetary limits will not be applicable to the smuggled goods and
appeal relating to such goods would be maintainable irrespective of the monetary
limits. The plea of non-maintainability of the appeal was rejected. It is urged that in
the present case at hand, the goods involved is smuggled one and hence the
monetary limits will not be applicable as per the decision of Meghalaya High Court.
It may be noted that SLP(C) No. 4566 of 2025 is pending before the Hon'ble
Supreme Court against the decision of Meghalaya High Court.
[24] From a bare perusal of the Instruction dated 02.11.2023, it is seen
that only on satisfaction of any of the three conditions, i.e., where the matter
involves challenge to the constitutional validity of an Act/Rule; where the
Notification/Instruction/Order/ Circular has been held illegal; or where classification
and refund issues are legal/ recurring in nature, appeal will be maintainable
irrespective of the monetary limits. With respect, we are not able to agree with the
decision of the Meghalaya High Court that appeal will be maintainable
notwithstanding the monetary limits, if the goods under investigation is smuggled
one. The 'smuggled goods' is not included in any of the three conditions laid down
in Para 2 of the Instruction dated 02.11.2023 and the same is incorporated by
judicial interpretation. Such a construction of statute cannot be adopted when the
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wordings in the relevant rules are clear. Resort to the golden rule of interpretation
of statute can be resorted when the words in the rules are ambiguous and in order
to achieve the object of the statute. In the case of Patheja Bros. Forgings &
Stamping v. ICICI Ltd.: (2000) 6 SCC 545, a three Judge Bench of the Hon'ble
Supreme Court held that "12. We have analysed the relevant words in Section 22
and found that they are clear and unambiguous and that they provide that no suit
for the enforcement of a guarantee in respect of any loan or advance granted to
the industrial company concerned will lie or can be proceeded with without the
consent of the Board or the appellate authority. When the words of a legislation are
clear, the court must give effect to them as they stand and cannot demur on the
ground that the legislature must have intended otherwise". In the present case, the
Instruction dated 02.11.2023 does not mention the words 'smuggled goods' in Para
2 for maintainability of the appeal irrespective of the minimum monetary limits. In
the circumstances, we are of the considered opinion that the category of 'smuggled
goods' cannot be read into Para 2 of the Instruction dated 02.11.2023.
[25] Even if the 'smuggled goods' has to be read into Para 2 as held by
Meghalaya High Court, the decision will not be applicable to the facts of the present
case. The Customs, Excise & Service Tax Appellate Tribunal, Kolkota has held in
para 12.5 of the impugned order dated 29.04.2024 in Custom Appeal No. 75171
of 2016 that the authority could not establish that the gold bars were smuggled into
India. Since the total value of the gold bars of ₹49,74,605/- (Rupees Forty Nine
Lakhs Seventy Four Thousand Six Hundred and Five) only along with the penalty
of ₹10,00,000/- (Rupees Ten Lakhs) only is less than the minimum threshold limit
of ₹1 crore for filing appeal before High Court in terms of the Instruction dated
02.11.2023, the present appeal is not maintainable and hence the same is
dismissed on this ground alone. Misc. applications are disposed of.
JUDGE CHIEF JUSTICE
FR/NFR
Kh. Joshua Maring
Customs Appeal No. 3 of 2024 with
MC(Customs Appeal) No. 1 of 2025 with Digitally signed by
MC(Customs Appeal) No. 5 of 2024 KH. JOSHUA KH. JOSHUA MARING
MARING Date: 2025.09.11
11:14:33 +05'30' Page 20
