Gujarat High Court
Comm vs Sabnam on 25 February, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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TAXAP/195/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 195 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================================
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?
=========================================================
COMM.
OF CENTRAL EXCISE & CUSTOMS, SURAT-II - Appellant(s)
Versus
SABNAM
SYNTHETICS LTD. - Opponent(s)
=========================================================
Appearance
:
MR
GAURANG H BHATT for
Appellant(s) : 1,
RULE UNSERVED for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 25/02/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE K.A.PUJ)
1. The Commissioner of Central Excise & Customs, Surat-II has filed this Tax Appeal under Section 35G of the Central Excise Act, 1944 proposing to formulate the following substantial questions of law for determination and consideration of this Court:
(a) Whether, the deemed export made by the noticee to other 100% EOU in the country in terms of para 9.20 of Exim Policy 1997-2002 were to be considered for the purpose of para 9.9(a), 9.9(b) and 9.20 of Exim Policy 1997-2002 after taking into consideration the definition of Export as described under Section 2(18) of Customs Act, 1962 as the term Export is neither defined in Exim Policy 1997-2002 nor in Central Excise Act, 1944?
(b) If Deemed Export cannot be treated as Export in terms of Notification No.2/95 CE dated 04.01.1995, then can M/s Sabnam Synthetics be permitted to clear goods in DTA against the Deemed Export?
2. This Court has issued notice on 29.01.2010 for final disposal making it returnable on 05.02.2010. An affidavit of service is filed by Shri Maheshbhai Vaghela, Superintendent, Central Excise and Customs, Surat stating that he has approached the respondent on 29.01.2010 when Mr.Sanjay Sharma, full-time paid employee of the assessee was present. He informed that the authorized signatory of the assessee is not available for the week and hence the notice could not be served. Mr.Bhatt, however, submitted that issue involved in this Tax Appeal is similar to one which is involved in Tax Appeal No.968/2008, which is being heard today. We have, therefore, considered Mr.Bhatt's submission even for this appeal too. Since Mr.A.Suryanarayan is appearing in Tax Appeal No.968/2008, his submission on law point are considered even for this appeal.
3. It is the case of the Revenue that the Adjudicating Authority, after issuing the show cause notice and after considering the reply filed on behalf of the respondent-Assessee and after considering the submissions made by the learned Counsel appearing for the respondent-Assessee, has passed the Order-in-Original on 02.11.2001 directing the respondent-Assessee to pay an amount of Rs.15,12,661/-, in terms of Section 11-A(2) of the Central Excise Act, 1944. Another Order-in-Original was passed on 05.11.2001 determining an amount of Rs.24,11,127/- in terms of Section 11A(2) of the Central Excise Act, 1944. One more Order-in-Original was passed on 05.11.2001 determining the amount of Rs.34,00,011/- payable in terms of Section 11A(2) of the Central Excise Act, 1944.
4. Being aggrieved by the said orders, the respondent-Assessee has preferred three separate appeals before the learned Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai being Appeal Nos.E/3835/2001 to E/3837/2001. These appeals came to be allowed by the Tribunal in favour of the assessee. After recording the facts of the case, the Tribunal observed that since the issue in dispute was, as to whether it is only actual or physical exports, or even deemed export can be taken into account. The pre-deposit of duty was required to be waived and appeals itself are required to be disposed of with the consent of the parties. The Tribunal, further, observed that in the case of Ginni International Ltd. Vs. Commissioner of Central Excise,Jaipur [2002(139) E.L.T. 172], the Tribunal has held that when 100% EOU has submitted the permission to sell goods manufactured by them in DTA in accordance with para-9.9 of the Exim Policy, the Government cannot go beyond such permission and dispute the value of clearance allowed by the Competent Authority which in that case is Development Commissioner.
5. After reproducing the relevant extracts from the said decision, the Tribunal set aside the three orders passed by the Adjudicating Authority and allowed the said three appeals.
6. The order of the Tribunal is under-challenge in the present Tax Appeal. It appears that the Revenue has challenged the order passed in three different appeals in one Tax Appeal preferred before this Court.
7. Be that as it may, there was an understanding between the parties that the issue in question is identical with the issue involved in Tax Appeal No.968/2008 and we have extensively dealt with this issue in the said appeal being Tax Appeal No.968/2008, which has been also heard today and disposed of by a judgment of even date.
8. Following the said decision, we are of the view that no question of law, much less any substantial question of law arises, out of the order of the Tribunal.
9. We, therefore, dismiss this Tax Appeal.
(K.A.Puj,J.) (Rajesh H. Shukla,J.) rakesh/ Top