Gujarat High Court
Commissioner Of Central Excise & ... vs M/S Fine Care Bio ... on 23 January, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
O/TAXAP/351/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 351 of 2010
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 & CUSTOMS....Appellant(s)
Versus
M/S FINE CARE BIO SYSTEMS....Opponent(s)
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Appearance:
MR YN RAVANI, ADVOCATE for the Appellant(s) No. 1
MR ISHAN BHATT, ADVOCATE for MR ANAND NAINAWATI, ADVOCATE for
the Opponent(s) No. 1
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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/351/2010 JUDGMENT
Date : 23/01/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI)
1. We have heard Mr.Y.N.Ravani, learned advocate for the appellant and Mr.Ishan Bhatt, learned advocate for Mr.Anand Nainawati, learned advocate for the respondent.
2. While admitting this appeal on 25.02.2010, the Court had formulated the following substantial question of law:
"(i) Whether Honourable CESTAT has committed an error in interpreting Rule 5 of Cenvat Credit Rules along with Sub Rule 2 (1) pertaining to definition of "input service" while interpreting words "used in manufacture" by treating various maintenance services as service "used in manufacture"?
(ii) Whether Honourable CESTAT has committed an error in ignoring Notification No.5/2006-CE (NT) dated 14.3.2006 stipulating that refund of Cenvat credit is allowed only in respect of input or input service used in the manufacture of final product, which is cleared for export?"
3. The recovery of Cenvat credit of Rs.42,931.00/- was imposed and the penalty of Rs.1000/- was also imposed on the assessee by the Deputy Commissioner, Central Excise. The Commissioner (Appeals) by its judgment dated 10.10.2008 has set aside the duty as well as the penalty imposed on the assessee. The department filed an appeal before the CESTAT, which was dismissed by the Tribunal. The 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. Page 2 of 3 O/TAXAP/351/2010 JUDGMENT 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.) Ashish Tripathi Page 3 of 3