Gujarat High Court
Commissioner - Central Excise ... vs Omkar Textile Mills ... on 16 February, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
O/TAXAP/638/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 638 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
===========================================================
1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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COMMISSIONER - CENTRAL EXCISE AHMEDABAD-1....Appellant(s)
Versus
OMKAR TEXTILE MILLS LIMITED....Opponent(s)
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Appearance:
MS MANISHA LAVKUMAR, ADVOCATE for the Appellant(s) No. 1
MR PARESH M DAVE, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
MR. VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 16/02/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY Page 1 of 3 O/TAXAP/638/2009 JUDGMENT MANOHAR SAHAI)
1. We have heard Ms. Manisha Lavkumar, learned counsel for the appellant and Mr. Paresh M. Dave, learned counsel for the respondent.
2. While admitting this appeal on 24.04.2009, the Court had formulated the following substantial question of law:
"Whether the Hon'ble the Customs, Excise & Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad has rightly held in favour of assessee when admittedly the assessee has never challenged the original order for fixation of Annual Capacity of Production by the Commissioner. ?"
3. In this Tax Appeal, the adjudicating authority, by order dated 25.05.2005, imposed the penalty of Rs.68,681/- upon the assessee. The assessee filed the appeal before the Commissioner (Appeals) and the Commissioner (Appeals), by order dated 31.08.2005, rejected the appeal of the assessee. Being aggrieved with the said order, the assessee filed the appeal before the CESTAT and the Tribunal, by order dated 22.01.2009, set aside the order of the Commissioner (Appeals) and remanded the matter to the adjudicating authority for fresh decision. The said order of the Tribunal is challenged in this Tax Appeal.
4. A Division Bench of this Court in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS V. STOVEC INDUSTRIES LTD., reported in 2014(33) STR 124 (Guj) held that in view of instruction dated 17.8.2011, Tax Page 2 of 3 O/TAXAP/638/2009 JUDGMENT Appeal below Rs.10 lakh is not maintainable and this instruction also applies to the pending appeal. Following the aforesaid decision of the Division Bench, we dismiss this Tax Appeal as not maintainable. Accordingly, the question of law posed in this appeal are answered in favour of the assessee and against the revenue.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) chandrashekhar Page 3 of 3