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Gujarat High Court

Commissioner Of Central Excise And ... vs M/S. Adani Power Limited on 1 February, 2021

Author: J.B.Pardiwala

Bench: J.B.Pardiwala, Ilesh J. Vora

       C/TAXAP/37/2021                                            ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/TAX APPEAL NO. 37 of 2021
=========================================================
=
COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, AHMEDABAD
                          Versus
                M/S. ADANI POWER LIMITED
==========================================================
Appearance:
MR DHAVAL D VYAS(3225) for the Appellant(s) No. 1
 for the Opponent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MR. JUSTICE ILESH J. VORA

                            Date : 01/02/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This Tax Appeal under Section 35 G of the Central Excise Act, 1944 read with Section 83 of the Finance Act,1944 is at the instance of the Revenue.

2. The Revenue has proposed the following four substantial questions of law for consideration of this Court:

"A. Whether in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was right in holding that the assesse was eligible for exemption as per notification dated 20.05.2009 in view of Circular No.142/11/2011­Service Tax dated 18.05.2011?

B. Whether in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal has erred in construing Notification No. 4/2004­Service Tax dated 31.03.2004, clarificatory Circular No.142/11/2011 Service Tax dated Page 1 of 3 Downloaded on : Tue Feb 02 21:31:34 IST 2021 C/TAXAP/37/2021 ORDER 18.05.2011 and Notification No.9/2009 Service Tax dated 3.03.2009 ?

C. Whether the services consumed by the company for works other than authorized operation under an enabling rule should be treated as "Wholly Consumed Services for the purpose of exemption from Tax".

D. Whether in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was right in holding that extended period of limitation can be invoked only when 'suppression' was 'willful'?

3. Mr. Paritosh Gupta, the learned counsel appearing for the respondent - assessee has raised the preliminary objections as regards the maintainability of this appeal before this High Court so far as the first three questions as proposed by the Revenue are concerned. According to Mr. Gupta, on the first three questions, the appeal would lie before the Supreme Court under Section 35 L of the Central Excise Act.

4. Mr. Dhaval Vyas, the learned Standing Counsel appearing for the Revenue would submit that, this Court has admitted one identical tax appeal of the very same assessee framing the very same three questions of law as sought to be proposed in the present appeal.

5. We Admit this Tax Appeal on the four questions of law as proposed by the Revenue. However, we keep it open for the respondent­assessee to raise these issues with respect to the Section Page 2 of 3 Downloaded on : Tue Feb 02 21:31:34 IST 2021 C/TAXAP/37/2021 ORDER 35 L of the Central Excise Act as and when the appeal is taken up for final hearing.

6. No Notice be issued to the respondents as Mr. Paritosh Gupta has already entered his appearance.

(J. B. PARDIWALA, J) (ILESH J. VORA,J) SUCHIT Page 3 of 3 Downloaded on : Tue Feb 02 21:31:34 IST 2021