Gujarat High Court
Kotak Chemicals Ltd vs Union Of India & on 25 July, 2013
Author: M.R. Shah
Bench: M.R. Shah
KOTAK CHEMICALS LTD....Appellant(s)V/SUNION OF INDIA O/TAXAP/781/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 781 of 2012 With CIVIL APPLICATION NO. 371 of 2012 In TAX APPEAL NO. 781 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH -sd/- and HONOURABLE MS JUSTICE SONIA GOKANI sd/- ============================================ A Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5. Whether it is to be circulated to the civil judge ? NO ============================================= KOTAK CHEMICALS LTD....Appellant(s) Versus UNION OF INDIA & 1....Opponent(s) ============================================= Appearance: MR. DEVEN PARIKH LD. SR ADV FOR MR NIRAV P SHAH, ADVOCATE for the Appellant(s) No. 1 DS AFF.NOT FILED (N) for the Opponent(s) No. 1 MR RJ OZA, LD. SR. ADVOCATE for the Opponent(s) No. 2 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MS JUSTICE SONIA GOKANI Date : 25/07/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. In the facts and circumstances of the case and with the consent of the learned counsel for the respective parties, present Tax Appeal is taken up for final hearing today as the dispute involved in the present Tax Appeal is in a very narrow compass.
2.0. Present appeal has been preferred by the appellant-original appellant challenging the impugned orders dated 28.6.2012 as well as 29.8.2012 (Annexure A and B) passed by the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESAT ).
3.0. It appears from the proceedings and the pleadings that against the order passed by the Commissioner of Central Excise and Customs (Appeals), Surat dated 28.2.2011 passed in OIA No.RKA/81-82/SRT-I/2011, the appellant preferred appeal before the CESAT and in the said appeal, the appellant submitted the application for stay / for waiver of pre deposit. The same came to be adjourned from time to time and lastly it was adjourned to 28.6.2012. That on 28.6.2012 an adjournment was sought on behalf of the appellant, which came to be rejected by the Tribunal and by ex-parte order dated 28.6.2012, the learned Tribunal granted the stay of recovery on condition to deposit entire amount of duty liability by the appellant within a period of 8 weeks. It appears that thereafter as the aforesaid order of pre-deposit was not complied with by the appellant, by subsequent order dated 29.8.2012 the Tribunal has dismissed the appeal. The aforesaid order dated 28.6.2012 (of pre deposit of amount by the appellant) as well as subsequent order dated 29.8.2012 rejecting the appeal on the ground of non compliance of the order of pre-deposit, the appellants have preferred the present appeal along with stay application.
4.0. Shri Deven Parikh, learned Senior Counsel appearing on behalf of the appellant has vehemently submitted that as such by communication dated 18.6.2012, the appellant pleaded the financial hardship by submitting the documentary evidences, however without considering the same, the Tribunal had passed an order dated 28.6.2012. It is therefore, the case on behalf of the appellant that the question with respect to the financial hardship pleaded by the appellant had not been considered by the Tribunal while passing order of pre-deposit / waiver of pre-deposit. It is submitted that as such the company is closed since 6 to 7 years and even it was pointed out that net worth of the company is negatived. Therefore, it is requested to either remand the matter to the learned Tribunal to consider the question of waiver of pre-deposit afresh or consider the case of the waiver of pre-deposit by this Court and in the facts and circumstances of the case he has left it to the Court the amount to be deposited as pre-deposit.
5.0. Shri R.J. Oza, learned Senior Counsel appearing on behalf of the department has pointed out that as such the communication dated 18.6.2012 came to be received by the Registry / inward department only on 28.6.2012 at about 12.56 p.m. It is submitted that therefore, it cannot be said that though the aforesaid communication / documentary evidences were available with the Tribunal, the Tribunal did not consider the same. However, he has submitted that in the facts and circumstances of the case, if the appellant is directed to pay some reasonable amount by way of pre-deposit, he would not have any objection and he has also left it to the Court the amount of pre-deposit to be deposited by the appellant.
6.0. Learned Counsel for the respective parties do not invite any further reasoned order while directing the appellant to deposit a reasonable amount, which deems fit by this Court.
7.0. Having heard the learned counsel for the respective parties and in the facts and circumstances of the case, more particularly, when it has been pointed out that the company is closed since 6 to 7 years we deem it fit that if the appellant is directed to deposit a sum of Rs.7.50 lacs with the department as pre-deposit, it will be in the fitness of things and it will be in the interest of justice.
8.0. In view of the above, present appeal succeeds in part. The appellant is directed to deposit a sum of Rs. 7.50 lacs as pre-deposit within a period of two months from today and on such deposit and on production of challan of such deposit before the Tribunal, the Tribunal is directed to decide and dispose of the appeal afresh in accordance with law and on merits at the earliest and preferably within a period of three months. On aforesaid deposit of Rs.7.50 lacs as pre-deposit, the impugned orders dated 28.6.2012 and 29.8.2012 are hereby quashed and set aside and the appeal is ordered to be restored to file of the CESAT. Present appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
CIVIL APPLICATION NO. 371of 2012 In view of disposal of appeal, no further order is required to be passed in the present Civil Application, which accordingly stands disposed of.
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(M.R.SHAH, J.) sd/-
(MS SONIA GOKANI, J.) Kaushik Page 4 of 4