Commissioner Of Central Excise vs Diamond Cables Ltd....Opponent(S) on 11 February, 2015

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Gujarat High Court

Commissioner Of Central Excise vs Diamond Cables Ltd....Opponent(S) on 11 February, 2015

Bench: Vijay Manohar Sahai

         O/TAXAP/1261/2008                                  JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             TAX APPEAL NO. 1261 of 2008



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
      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 ?

================================================================
             COMMISSIONER OF CENTRAL EXCISE....Appellant(s)
                              Versus
                  DIAMOND CABLES LTD....Opponent(s)
================================================================
Appearance:
MR RJ OZA, ADVOCATE for the Appellant(s) No. 1
MR MEHUL H RATHOD, ADVOCATE for the Opponent(s) No. 1
================================================================

           CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
                  VIJAY MANOHAR SAHAI


                                       Page 1 of 3
       O/TAXAP/1261/2008                                        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.

2. While admitting this appeal on 11.09.2009, the Court had formulated the following substantial questions of law:

"(1)Whether in the facts and circumstances of the case, the Tribunal is justified and has committed substantial error of law in setting aside the order of recovery of interest on wrongful availment of Cenvat credit on inputs?

(2)Whether in the facts and circumstances of the case, the Tribunal is justified and has committed substantial error of law in holding that interest on Cenvat credit availed of was not sustainable though inputs used in manufacture of finished goods were not received at the time of credit being availed of and utilized?"

3. In this Tax Appeal, the adjudicating authority imposed the penalty of Rs.5,97,363/- and interest of equal amount. The assessee filed the appeal before the Commissioner (Appeals) Page 2 of 3 O/TAXAP/1261/2008 JUDGMENT wherein the penalty was set aside and interest amount was confirmed. The assessee filed the appeal before the CESTAT and the Tribunal has allowed 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) 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 3 of 3

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