Gujarat High Court
Commissioner vs M/S on 24 November, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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TAXAP/491/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 491 of 2011
=========================================================
COMMISSIONER
CENTRAL EXCISE,CUSTOMS & SERVICE TAX, VAPI - Appellant(s)
Versus
M/S
CHARAK PHARMA P LTD - Opponent(s)
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Appearance
:
MR
RJ OZA
for
Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI 24th November 2011
ORAL
ORDER (Per
: HONOURABLE Ms. JUSTICE SONIA GOKANI) Being aggrieved and dissatisfied with the order of the Central Excist & Sales Tax Appellate Tribunal, West Zonal Bench, Ahmedabad ["Tribunal" for short] dated 9th September 2010, the Department has challenged the same before this Court, raising following questions of law for our consideration :
[a] "Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in deciding appeal on merit at the time of hearing of application for stay, without issuing specific notice of hearing of appeal on merit ?"
[b] Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in allowing appeal of respondent without recording its reasoned disagreement to the findings of the Commissioner (Appeals), Central Excise & Customs, Vadodara on the point of extended period of limitation invoked against the respondent by the revenue ?"
[c] Whether in the facts and circumstances of the case, the impugned order of the Tribunal is contrary to observation made by the Apex Court in case of Commissioner of Central Excise, New Delhi vs. GTC Industries Limited [2008 (228) ELT 505 (SC)] ?"
[d] Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law allowing appeal of respondent without considering case of the revenue and by placing sole reliance on the decision of the Tribunal in case of Marsha Pharma Private Limited v. Commissioner of C. Ex., Vadodara [(2009) (248) ELT 687 (Trib. Ahmedabad)] ?"
Heard learned senior counsel Mr. Oza for the Department and with his assistance, examined the orders of the adjudicating authorities placed before us.
The respondent herein is a manufacturer of pharmaceutical products. The dispute which was raised before the Tribunal is with regard to the assessable value of the physician sample packs distributed free of cost. The Tribunal has noted that on merits, this issue has been decided by the larger Bench of the Tribunal in case of Cadila Pharmaceuticals Limited, reported in [2008 (232) ELT 245]. With regard to the period involved, a show cause notice was issued on 11th June 2008 and relying on the Tribunal's decision in case of M/s. Marsha Pharma Private Limited, the demand was held barred by limitation. Seeking support from the order in case of M/s. Marsha Pharma, where the Bench has observed that the extended period would not be invoked in cases where the matter is referred to the Larger Bench and also discussed the effect of the Circular issued by the Board, the Tribunal held in the instant case that the demand is barred by limitation.
Learned counsel Mr. Oza also pointed out to us that the decision in M/s. Marsha Pharma Private Limited had been carried in appeal by the Department in Tax Appeal No. 2399 of 2009 and this Court, vide its order dated 30th September 2010, chose not to entertain the appeal on the ground that the Tribunal committed no legal error in holding that the extended period of limitation could not have been invoked. This Court also found that there was no question of law much less a substantial question of law proposed, which had required further meritorious consideration. It is also further pointed out by the learned counsel that the Board had chosen not to file any SLP against the said order, as can be culled out from the letter received from the Superintendent (Legal) dated 23rd November 2011. In other words, decision of this Court given in case of M/s. Marsha Pharma Private Limited has attained finality and as the Tribunal, relying on the said decision, when has addressed the issue, there is no requirement for giving any separate and independent reasonings for the questions proposed before us and following the decision of this Court; as mentioned earlier, the order of the Tribunal is not being interfered with. With no other question of law to be determined, this Tax Appeal stands dismissed.
{Akil Kureshi, J.} {Ms. Sonia Gokani, J.} Prakash* Top