Gujarat High Court
Commissioner Of Central Excise And ... vs M/S Mahavir Dyeing & Printing ... on 9 February, 2015
O/TAXAP/1520/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 1520 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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COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS SURAT-
I....Appellant(s)
Versus
M/S MAHAVIR DYEING & PRINTING MILLS....Opponent(s)
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Appearance:
MR GAURANG H BHATT, ADVOCATE for the Appellant(s) No. 1
MR PARESH M DAVE, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
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O/TAXAP/1520/2008 JUDGMENT
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 09/02/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI)
1. We have heard Mr.Gaurang Bhatt, learned counsel for the appellant.
2. While admitting this appeal on 23.07.2009, the Court had formulated the following substantial questions of law:
"1. Whether in the facts and circumstances of the case, the Tribunal is justified in placing reliance on the decision of the Hon'ble Bombay High Court rendered in Om Textile Pvt. Ltd. Vs. CCE, Belapur, 2006(74) RLT 333(Bom)?
2. Whether, in the facts and circumstances of the case, the Tribunal is justified and has committed error of law in holding that irrespective of the fact of challenging of fixation of annual production capacity, the law declared by the Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. SPBL, 2002 (63) RLT 644(SC) has to be taken into account and whether the Tribunal is justified in setting aside the impugned order and remanding the matter back to the original adjudicating authority for decision afresh?"Page 2 of 3
O/TAXAP/1520/2008 JUDGMENT 3. In this Tax Appeal, the adjudicating authority rejected the refund claim of Rs.6,59,065/-. The assessee filed the appeal
before the Commissioner (Appeals)which came to be rejected. The assessee filed the appeal before the CESTAT and the Tribunal has set aside the impugned order and remanded the matter to the adjudicating authority for fresh consideration. The said order of the Tribunal is challenged 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