Gujarat High Court
Commissioner vs Manisa on 21 January, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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TAXAP/1819/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1819 of 2008
=========================================================
COMMISSIONER
OF CENTRAL EXCISE& CUSTOMS - Appellant(s)
Versus
MANISA
DYEING & PRINTING WORKS (P) LTD - Opponent(s)
=========================================================
Appearance
:
MR
GAURANG H BHATT for
Appellant(s) : 1,
MR PARESH M DAVE for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/01/2010
ORAL ORDER
(Per : HONOURABLE MR.JUSTICE K.A.PUJ) The Commissioner of Central Excise & Customs, Surat has filed this Tax Appeal under Section-35G of the Central Excise Act, 1944 proposing to formulate the following substantial question of law for determination and consideration of this Court.
Whether in the facts and circumstances of the present case, the tribunal is justified and has committed a substantial error of law in reducing the mandatory penalty imposed under Rule-25 of the Central Excise Rules, 2002 read with Section-11AC of the Central Excise Act, 1944 on the ground that the confirmed duty was deposited before issuance of the show cause notice ?
This Court has issued notice for final disposal on 17.12.2009. On service of notice Mr.Dhaval Shah, learned advocate has filed his appearance on behalf of the respondent.
Heard Mr.Gaurang H. Bhatt, learned Standing Counsel appearing for the Revenue and Mr.Dhaval Shah, learned advocate appearing for the respondent.
The question involved in this Tax Appeal has come up before this Court in Tax Appeal No.781 of 2006 and while disposing of the said Tax Appeal on 18.2.2009 this Court has observed as under;
The question raised in this appeal is whether the Tribunal has correctly applied the provisions of rule 96ZQ (ii) of the Central Excise Rules 1944 and also the provisions of section 11AC of the Central Excise Act, 1944. The Tribunal has reduced the penalty exercising its discretion. The Apex Court in the case of Union of India v. Dharamendra Textile Processors, 2008 (231) E.LT. 3 held that once the ingredients are satisfied, imposition of penalty is a mandatory requirement and no discretion is available.
Learned counsel appearing for the assessee referred to an order passed by the Supreme Court in the case of Union of India vs. Dharamendra Textile Processors, 2007 (215) E.L.T. 321, especially para 9 of the order, and stated that vires of section 96ZQ is under challenge before this Court as well as before the Supreme Court and that being the fact situation, it is not necessary to remand the matter to the Tribunal for consideration afresh. We find it difficult to accept this contention.
In the facts and circumstances of the case, we are satisfied that in light of the law laid down by the Apex Court in the case of Union of India v. Dharamendra Textile Processors, 2008 (231) E.LT. 3, the matter is required to be considered by the Tribunal afresh. Therefore, the order of the Tribunal is set aside. The matter is remanded to the Tribunal for passing fresh orders in accordance with law. The question of applicability of proviso to section 11AC will also be considered and examined by the Tribunal while deciding the matter afresh. The Tribunal shall pass fresh order within a period of three months from the date of receipt of a copy of this judgment.
In view of the above order passed by this Court, we hereby quash and set aside the impugned order passed by the Tribunal and remand the matter to the Tribunal for passing a fresh order in accordance with law. The Tribunal is directed to consider the applicability of proviso to Section-11AC of the Act. The Tribunal is further directed to pass a fresh order as expeditiously as possible, preferably within period of three months from the date of receipt of copy of this order.
This Appeal is accordingly disposed of without any order as to costs.
(K. A. PUJ, J.) (R. H. SHUKLA, J.) kks Top