Gujarat High Court
Commissioner Of Central Excise ... vs Nova Petrochemicals Limited - Opponent on 14 October, 2010
Author: K.A.Puj
Bench: K.A.Puj
TAXAP/2335/2009 1/3 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL No. 2335 of 2009
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COMMISSIONER OF CENTRAL EXCISE AHMEDABAD - II - Appellant
Versus
NOVA PETROCHEMICALS LIMITED - Opponent
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Appearance :
MR DARSHAN M PARIKH for Appellant.
None for Opponent.
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CORAM : HONOURABLE MR.JUSTICE K.A.PUJ
and
HONOURABLE MS.JUSTICE H.N.DEVANI
Date : 14/10/2010
ORAL ORDER
(Per : HONOURABLE MR.JUSTICE K.A.PUJ)
1. The Revenue has filed this tax appeal under Section 35-G of the Central Excise Act, 1944 against the order passed by the Central Excise and Service Tax Appellate Tribunal, Ahmedabad in Central Excise Appeal Nos.607 and 928 of 2009 proposing to formulate the following substantial questions of law for the determination and consideration of this Court :-
i. Whether the CESTAT was right in holding that the duty of National Calamity Contingent Duty (NCCD) paid on inputs i.e. POY can be used for availing CENVAT credit when the final product i.e. Draw Twisted Yarn / Texturized Yarn which is not subject to NCCD ?
TAXAP/2335/2009 2/3 ORDER ii. Whether the Commissioner (Appeals) was right in waiving/reducing the penalty imposed under Section 11AC of the Central Excise Act, 1944 contrary to the judgment of Hon'ble Supreme Court in case of Union of India V/s. Dharmendra Textile Processors reported in 2008 (231) ELT Page 3 and Union of India V/s. Rajasthan Spinning and Weaving Mills etc. reported in 2009 (238) ELT 3 (SC) ?
2. The Tribunal has passed the combined order on 31.07.2009 in two appeals, one filed by the revenue and the other one filed by the assessee. The Revenue was aggrieved before the Tribunal against an order passed by the Commissioner (Appeals) rejecting the demand of Rs.21,251/- and allowing the assessee to credit of NCCD of the said amount paid on the invoices of the returned goods and also against the due of penalty from Rs.2,43,361/- to Rs.2,000/-. The assessee was aggrieved against the retention of penalty of Rs.2,000/-.
3. The Tribunal while disposing of both the appeals by a common order and after following the earlier decision of the Tribunal allowed the appeal filed by the assessee. Even with regard to the Revenue's appeal against the less penalty, the Tribunal has observed that even the less penalty retained by the Commissioner (Appeals) against which appeal was preferred by the assessee was allowed and the said penalty was set aside and in view of the said finding, nothing survived in the appeal filed by the TAXAP/2335/2009 3/3 ORDER revenue and accordingly, the Tribunal has dismissed the said appeal.
4. Since the Revenue has filed separate appeal being Tax Appeal No.2211 of 2010 for penalty, we treat this appeal against the duty demand and grant of credit of NCDD and considering the issue involved therein, we are of the view that the present appeal requires consideration by this Court. Hence, we admit this appeal and formulate question No.(i) as substantial question of law :-
"Whether the CESTAT was right in holding that the duty of National Calamity Contingent Duty (NCCD) paid on inputs i.e. POY can be used for availing CENVAT credit when the final product i.e. Draw Twisted Yarn / Texturized Yarn which is not subject to NCCD ?"
5. Notice to the other side. Additional paper-book, if any, to be filed within three months from today.
Sd/-
[K. A. PUJ, J.] Sd/-
[HARSHA DEVANI, J.] Savariya