Gujarat High Court
The Commissioner Of Central Excise & ... vs Binaykiya Synthetics ... on 4 February, 2015
O/TAXAP/144/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 144 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, SURAT -
II....Appellant(s)
Versus
BINAYKIYA SYNTHETICS LTD.....Opponent(s)
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Appearance:
MR.VARUN K.PATEL, ADVOCATE for the Appellant(s) No. 1
DS AFF.NOT FILED (R) for the Opponent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
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O/TAXAP/144/2008 JUDGMENT
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 04/02/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI)
1. We have heard Mr.Varun K.Patel, learned counsel for the appellant.
2. While admitting this appeal on 19.02.2009, the Court had formulated the following substantial questions of law:
"(a) Whether, in the facts and circumstances of the case, the Tribunal is justified in holding that penalty equivalent to the amount of duty leviable under Section 96ZQ(5)(ii) is not mandatory and not justified?
(b) Whether in the facts and circumstances of the case, the Tribunal is justified in placing reliance upon the ratio laid down in the case of Parmeshwar Dyeing & Printing Mills Pvt.Ltd Vs. Union of India, reported in 2005(191) ELT 86 (Guj.)?"
3. In this case, apart from excise duty, penalty of Rs.7,50,000/- was imposed on the assessee by the adjudicating authority which was reduced to Rs.25,000/- by the Commissioner (Appeals). The revenue filed the appeal before Page 2 of 3 O/TAXAP/144/2008 JUDGMENT the CESTAT for enhancement of penalty. The appeal was dismissed by the Tribunal. The said order of the 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 questions of law posed in this appeal are answered in favour of the assessee and against the revenue.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) pathan Page 3 of 3