Gujarat High Court
Shree Prakash Textiles (Guj.) Pvt. Ltd vs The Commissioner Of Central Excise & ... on 2 March, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
O/TAXAP/189/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 189 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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SHREE PRAKASH TEXTILES (GUJ.) PVT. LTD.....Appellant(s)
Versus
THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, AHMEDABAD-
II....Opponent(s)
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Appearance:
MR. PARITOSH GUPTA FOR MR. PARESH M DAVE, ADVOCATE for the
Appellant(s) No. 1
MRS VD NANAVATI, 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
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O/TAXAP/189/2008 JUDGMENT
Date : 02/03/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI) We have heard learned advocate Mr. Paritosh Gupta for learned advocate Mr. Paresh M. Dave for the appellant and learned advocate Ms. V.D. Nanavati for the respondent Department.
2. This Tax Appeal was admitted on the following substantial questions of law:
"1. Whether the Tribunal has substantially erred in law in holding that determination of Annual Production Capacity was an appealable order under Section 35B of the Central Excise Act, 1944?
2. Whether the Tribunal has substantially erred in law in denying refund to the appellant on dimensions of galleries and panel patti despite the judgement of the Hon'ble Supreme Court in SPBL Limited, 2002 (146 ELT 254 (SC)?"
3. Having heard learned counsel for the parties, we are of the opinion that this tax appeal is squarely covered by the decision of the Division Bench of this Court in Premraj Dyeing & Printing Mills Pvt.Ltd. Vs Union of India, 2013 (288) ELT 357 (Guj) wherein it has been held that refund claims are maintainable without challenging the determination of Annual Production Capacity. Therefore, this tax appeal deserves to be allowed. Accordingly, this tax appeal is allowed. The questions are answered in favour of the assessee and against the department.
(V.M.SAHAI, ACJ.)
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O/TAXAP/189/2008 JUDGMENT
(R.P.DHOLARIA,J.)
(pkn)
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