Gujarat High Court
The Commissioner Of Central Excise & ... vs Dynamic Industries ... on 2 February, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
O/TAXAP/1568/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 1568 of 2007
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 NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
5. Whether it is to be circulated to the Civil NO
Judge ?
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THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, AHMEDABAD-
I....Appellant
Versus
DYNAMIC INDUSTRIES LIMITED....Opponent
=========================================
Appearance :
MS SEJAL K MANDAVIA, ADVOCATE for the Appellant.
MR KUNTAL PARIKH, ADVOCATE FOR MR PARESH M DAVE, ADVOCATE for
the Opponent.
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
MR. VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Page 1 of 3
O/TAXAP/1568/2007 JUDGMENT
Date : 02/02/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI)
1. We have heard Ms. Sejal K. Mandavia, learned Central Government Standing Counsel appearing for the appellant and Mr. Kuntal Parikh for Mr. Paresh M. Dave, learned counsel appearing for the respondent.
2. While admitting this appeal on 31.1.2008, the following substantial question of law was formulated :-
"Whether in the facts and circumstances of the case, the Tribunal is justified in setting aside the demand of duty confirmed u/s. 11A of the Central Excise Act and as well as the recovery of interest u/s. 11AB and penalty under Section 11AC of the Act on the ground that there was absence of evidence on record as regards clandestine removal of goods ?"
3. In this Tax Appeal, during the course of search, the Officers received challans of S.O. Dyes valued at Rs.15,83,180/- and the same were cleared without paying duty of Rs.1,51,985/-. Hence, show-cause notice was issued to the respondent to show cause as to why penalty should not be imposed. The said notice was adjudicated by the Additional Commissioner of Central Excise, Ahmedabad-I who confirmed the demand of central excise of Rs.1,51,985/- and also imposed penalty of the equal amount of duty. Being aggrieved by the said order, the respondent preferred appeal before the Commissioner (Appeals) which came to be rejected vide order dated 29.7.2005 Being further aggrieved, the respondent preferred appeal before the Customs, Excise and Service Tax Page 2 of 3 O/TAXAP/1568/2007 JUDGMENT Appellate Tribunal, West Zonal Bench at Ahmedabad which came to be allowed and the order of the Commissioner (Appeals) as well as order in original were set aside. The said order of CESTAT is challenged by the Revenue in this Tax Appeal.
4. A Division Bench of this Court in the 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.) Savariya Page 3 of 3