Gujarat High Court
The Commissioner, Cgst And Central ... vs M/S Shree Renuka Sugars Ltd on 27 June, 2019
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
C/TAXAP/302/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TAX APPEAL NO. 302 of 2019
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THE COMMISSIONER, CGST AND CENTRAL EXCISE
Versus
M/S SHREE RENUKA SUGARS LTD
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Appearance:
MR ANKIT SHAH(6371) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE A.C. RAO
Date : 27/06/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This Tax Appeal at the instance of the revenue is ADMITTED on the following substantial questions of law :-
"(a). Whether the CESTAT is legally correct in passing order for dismissal of the appeal for the reason that the revision application lies with the Government of India in view of the Proviso to Section 35B of the CEA, 1944?
(b). Whether the CESTAT was barred from exercising its appellate jurisdiction in the matters not pertaining to exclusive issue of rebate of Central Excise duty leviable under Section 3 of the Central Excise Act, 1944, but in the matters pertaining to many other issues including the Page 1 of 4 Downloaded on : Sat Jun 29 23:30:39 IST 2019 C/TAXAP/302/2019 ORDER issue of eligibility of rebate of Sugar Cess levied as "duty of excise" under the Sugar Cess Act, 1982?
(c). Whether the restriction on the appellate jurisdiction of the CESTAT in terms of issue (b) provided at First Proviso to Section 35B(1) of the Central Excise Act is relevant to the "rebate of duty of excise" payable under Section 3 of the Central Excise Act, 1944 in the context of Rule 2(e) of the Central Excise Rules, 2002 read with Rule 18 of the Central Excise Rules, 2002 or it also extends to the 'rebate of duty of excise" payable under Sugar Cess Act, 1982 ?
(d). Whether CESTAT is legally correct in treating the "duty of excise" leviable under Section 3 of the Central Excise Act, 1944 at par with the different "duty of excise" leviable under Section 3 of the Sugar Cess Act, 1982?
(e). Whether the CESTAT was correct in passing the order on the basis of Kamataka High Court wherein the department had filed appeal before the Hon'ble Supreme Court?
(f). Whether the CESTAT was correct in passing order for dismissal of the appeal filed by the department in the context of the orders of Hon'ble Gujarat High Court in the case of M/s.
Sahakari Khand Udyog Mandali Ltd. [2011 (263) Page 2 of 4 Downloaded on : Sat Jun 29 23:30:39 IST 2019 C/TAXAP/302/2019 ORDER ELT 34 (Guj)] ?
(g). Whether in the context of the present case of the assessee, who were not required to make payment of Sugar Cess at the time of removal of finished goods and have filed claim for rebate of Sugar Cess as well as EC and SHEC paid thereon at their own, the order passed by the CESTAT for dismissal of appeal filed by the department is legally correct in the context of earlier CESTAT decision in the case of M/s. Mahendra Chemicals [2007 (208) ELT 505 (Tri.Ahmd)], holding that the unconditional exemption cannot make the assessee entitled to claim rebate by discretionary payment of duty ?
(h). Whether the department is legally bound to consider a claim filed within the scope of Rule 18 of the Central Excise Rules, 2002, for the rebate of Sugar Cess along with EC and SHEC paid on such Sugar Cess from the wrongly availed Cenvat credit?
(i). Whether the CESTAT is legally correct in dismissal of appeal on the issue of bar of appellate jurisdiction after almost three years from the date of filing of appeal and that too after allowing the applications of Condonation of delay filed by the Appellant/ department and early hearing filed by the Respondent (asseesee) in the same appeal ?
Page 3 of 4 Downloaded on : Sat Jun 29 23:30:39 IST 2019 C/TAXAP/302/2019 ORDER
(i). Whether the assessee, who did not raise
objection about bar of appellate jurisdiction of CESTAT at the time when the CESTAT was entertaining the COD application, can raise the issue after almost three years period thereafter and CESTAT is correct in considering such plea ?"
Sd/-
(J. B. PARDIWALA, J) Sd/-
(A. C. RAO, J) RAFIK..Page 4 of 4 Downloaded on : Sat Jun 29 23:30:39 IST 2019