Supreme Court - Daily Orders
The Commissioner Of Central Excise ... vs Bakelite Hylam Ltd on 1 August, 2019
Bench: D.Y. Chandrachud, Indira Banerjee
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos of 2019
(Diary No 10950/2017)
The Commissioner of Central Excise, Customs and
Service Tax Hyderabad II .... Appellant(s)
Versus
Bakelite Hylam Ltd ....Respondent(s)
ORDER
Admit.
These appeals arise from a judgment and order of the CESTAT dated 14 July 2016 in Appeal Nos.E/901/2008 and E/906/2008. The adjudicatory authority, on an earlier remand, passed an order-in-original on 12 September 2008, confirming a demand of Rs 1,26,29,491 (after adjusting an amount of Rs 35,52,111) under Rule 9(2) of the Central Excise Rules 1944, together with a penalty of Rs 15,00,000 under Rule 173Q.
The following appeals were filed before the CESTAT:
(i) Appeal No. E/901/2008 filed by the Revenue; and
(ii) Appeal No.E/926/2008 filed by the Assessee.Signature Not Verified Digitally signed by SANJAY KUMAR
On 3 December 2009, only the appeal of the assessee was listed for Date: 2019.08.06 14:32:31 IST Reason: hearing. The CESTAT allowed the appeal of the assessee. The CESTAT held that when there was a clear cut finding that the ex-factory price is a 2 genuine price and there being no appeal of the Revenue against the finding, the order of the adjudicatory authority confirming the demand was incorrect and liable to be set aside.
In January 2010, the Revenue moved an application for recall of the order of the CESTAT dated 3 December 2009. On 12 June 2012, the CESTAT recalled its order dated 3 December 2009 and listed both the appeals for hearing.
By the impugned judgment and order dated 14 July 2016, the CESTAT dismissed the appeal of the Revenue, by relying upon the findings contained in its earlier order dated 3 December 2009 in the assessee’s appeal bearing No E/926/2008. Inadvertently, the CESTAT has missed the fact that the order dated 3 December 2009 had already been recalled on 12 June 2012. In paragraph 6 of its impugned judgment, the CESTAT has extracted the relevant part of its earlier order dated 3 December 2009. In paragraph 7, the Tribunal observed that, in its earlier order, it had come to the conclusion that the adjudicatory authority having held that the ex-factory price is genuine, the confirmation of the demand was not warranted.
The basis on which the CESTAT has taken a decision, namely, the earlier order of the CESTAT dated 3 December 2009 is flawed since the order relied on has been recalled.
For the above reasons, we remand the proceedings back to the CESTAT in view of the inadvertent error which has cropped up in the 3 impugned judgment and order. We accordingly allow the appeals and set aside the impugned judgment and order of the CESTAT dated 14 July 2016. Appeal Nos E/901/2008 and E/926/2008 are accordingly restored to the file of the CESTAT for disposal afresh. There shall be no order as to costs.
We clarify that all rights and contentions of the parties on merits are kept open.
…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….…........J. [Indira Banerjee] New Delhi;
August 01, 2019
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ITEM NO.1 COURT NO.9 SECTION XII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL Diary No(s). 10950/2017 THE COMMISSIONER OF CENTRAL EXCISE CUSTOMS AND SERVICE TAX HYDERABAD II Appellant(s) VERSUS BAKELITE HYLAM LTD Respondent(s) (FOR ADMISSION and I.R. and IA No.52595/2017-EX-PARTE STAY and IA No. 52592/2017 - CONDONATION OF DELAY IN FILING APPEAL IA No. 52595/2017 - EX-PARTE STAY) Date : 01-08-2019 These matters were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MS. JUSTICE INDIRA BANERJEE For Appellant(s) Ms. B. Sunita Rao, Adv.
Neelam Chand, Adv.
Ms. Shirin Khajuria, Adv.
Mr. Devashish Bharuka, Adv.
Mr. B. Krishna Prasad, AOR For Respondent(s) Ms. L. Maithili, Adv.
Mr. Rupesh Kumar, AOR Ms. Pankhuri Shrivastava, Adv.
Mr. Pravesh Bahuguna, Adv.
UPON hearing the counsel the Court made the following O R D E R Delay condoned.
Admit.
The appeals are allowed in terms of the signed order. There shall be no order as to costs.
Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER
(signed order is placed on the file)