Commissioner Of Central Excise& ... vs M/S. Aglowmed Ltd.....Opponent(S) on 16 February, 2015

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Gujarat High Court

Commissioner Of Central Excise& ... vs M/S. Aglowmed Ltd.....Opponent(S) on 16 February, 2015

Bench: Vijay Manohar Sahai

         O/TAXAP/1950/2006                                 JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             TAX APPEAL NO. 1950 of 2006



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 or any order
      made thereunder ?

================================================================
        COMMISSIONER OF CENTRAL EXCISE& CUSTOMS, SURAT-
                          II....Appellant(s)
                                Versus
                 M/S. AGLOWMED LTD.....Opponent(s)
================================================================
Appearance:
MR GAURANG H BHATT, ADVOCATE for the Appellant(s) No. 1
RULE SERVED for the Opponent(s) No. 1
================================================================

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


                                       Page 1 of 3
      O/TAXAP/1950/2006                                       JUDGMENT



                   HONOURABLE MR.JUSTICE R.P.DHOLARIA

                            Date : 16/02/2015


                            ORAL JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI)

1. We have heard Mr.Gaurang H.Bhatt, learned counsel for the appellant.

2. While admitting this appeal on 22.08.2007, the Court had formulated the following substantial question of law:

"Whether the products in question i.e. Generic medicine other than P & P medicine falling under Chapter Subheading No.3003.20 of Central Excise Tariff Act, 1985 attracting Nil rate of duty was entitled for Modvat credit or otherwise ?"

3. In this Tax Appeal, the adjudicating authority by order dated 11.4.2002 confirmed the recovery of Modvat Credit of Rs.8,69,002=51 paise and imposed the total penalty of Rs.20,000/-. The assessee filed the appeal before the Commissioner (Appeals)which came to be allowed by order dated 23.7.2004. The revenue filed the appeal before the CESTAT and the Tribunal has dismissed the appeal by order dated 16.12.2005. The said order of the Tribunal is challenged in this tax appeal.

4. A Division Bench of this Court in the Page 2 of 3 O/TAXAP/1950/2006 JUDGMENT 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 question of law posed in this appeal is 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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