Gujarat High Court
Commissioner Of Central Excise& ... vs Ajay Prakash Dyg. & Ptg. ... on 11 February, 2015
O/TAXAP/509/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 509 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 EXCISE& CUSTOMS, SURAT-
I....Appellant(s)
Versus
AJAY PRAKASH DYG. & PTG. MILLS....Opponent(s)
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Appearance:
MR RJ OZA, ADVOCATE for the Appellant(s) No. 1
RULE SERVED for the Opponent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
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O/TAXAP/509/2008 JUDGMENT
VIJAY MANOHAR SAHAI
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 25.06.2009, the Court had formulated the following substantial questions of law:
"1. Whether in the facts and circumstances of the case, the Tribunal is justified in placing reliance on the decision of the Bombay High Court rendered in Om Textile Pvt. Ltd. Vs. CCE, Belapur, 2006(74) RLT 333(Bom)?
2. Whether, in the facts, and circumstances of the case, the tribunal is justified in holding that irrespective of the fact of challenging of fixation of Annual Production Capacity, the law declared by the the Hon'ble Supreme Court in the case of Commissioner of Central Vs. SPBL has to be taken into account and whether the tribunal is justified in setting aside the impugned order and remanding the matter to original adjudicating authority for decision afresh?
3. Whether in the facts and circumstances of the case, the Tribunal Page 2 of 4 O/TAXAP/509/2008 JUDGMENT was justified or not in allowing claim for refund of respondent contrary to decision of Tribunal in the case of Bharucha & Sons v. Commissioner of C. EX. & CUS., SuratI reported in 2006(205)ELT 1158 (Tri.Mumbai) wherein the Tribunal has denied refund to the assessee relying on decision of the Apex Court in the case of Flock (India) Pvt. Ltd. reported in [2000(120) ELT 285(SC)]?"
3. In this Tax Appeal, the adjudicating authority rejected the refund claim of Rs.3,79,161/-. The assessee filed the appeal before the Commissioner (Appeals)wherein the the order of the adjudicating authority was confirmed. The assessee filed the appeal before the CESTAT and the Tribunal has set aside the order in appeal and remanded the matter. 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.
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(V.M.SAHAI, ACJ.)
(R.P.DHOLARIA,J.)
pathan
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