Gujarat High Court
Commissioner Of Central Exciseand ... vs Prism Pigments & Colours P. ... on 11 February, 2015
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai
O/TAXAP/646/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 646 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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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COMMISSIONER OF CENTRAL EXCISEAND CUSTOMS....Appellant(s)
Versus
PRISM PIGMENTS & COLOURS P. LTD.....Opponent(s)
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Appearance:
MR RJ OZA, 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
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O/TAXAP/646/2008 JUDGMENT
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 11/02/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI)
1. We have heard Mr.R.J.Oza, learned counsel for the appellant and Mr.Paresh Dave, learned counsel for the respondent.
2. While admitting this appeal on 17.03.2009, the Court had formulated the following substantial questions of law:
"(A) Whether in the facts and circumstances of the present case, the Tribunal is justified in upholding the order of the appellate authority, setting aside the confirmation of demand of Rs.75,481/- for the reason that Revenue has failed to establish clandestine removal of goods, despite the evidence existed on record?
(B) Whether in the facts and circumstances of the present case, the Tribunal is justified in upholding the order of the appellate authority, setting aside the mandatory penalty levied under Section 11AC of the Central Excise Act, 1944, equivalent to amount of duty on the ground that the duty was paid before issuance of show cause notice?
(C)Whether in the facts and
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O/TAXAP/646/2008 JUDGMENT
circumstances of the present case, the Hon'ble Tribunal is justified in upholding the order of the appellate authority, setting aside the mandatory penalty equivalent to the amount of duty imposed under Rule 173Q read with Section 11AC of the said Act on the ground that duty leviable was paid before issuance of show cause notice, placing reliance on the judgment of the Tribunal reported in the case of M/s. Machino Montell(I) Ltd. reported in 2004[62] RLT 709 [CESTATLB]?
(D) Whether in the facts and circumstances of the present case, the Tribunal is justified in holding that from the available records and sources, the allegation of clandestine removal cannot be fastened on the respondent and therefore, thee was no ground to interfere with the order of the Commissioner[Appeals]?
3. In this Tax Appeal, the adjudicating authority imposed the central excise duty of Rs.78,481/- and penalty of Rs.79,000/- on the unit. The assessee filed the appeal before the Commissioner (Appeals)which came to be disposed of by setting aside the demand of duty and penalty. The revenue filed the appeal before the CESTAT and the Tribunal has dismissed the appeal. 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) Page 3 of 4 O/TAXAP/646/2008 JUDGMENT STR 124 (Guj) held that in view of instruction dated 17.8.2011, tax 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 questions 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.) pathan Page 4 of 4