Gujarat High Court
Commissioner Of Central Excise & ... vs Rajhans Silk Mills Pvt Ltd - Opponent(S) on 23 November, 2009
Author: K.A.Puj
Bench: K.A.Puj
TAXAP/1854/2008 1/3 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL No. 1854 of 2008
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COMMISSIONER OF CENTRAL EXCISE & CUSTOMS SURAT-II -
Appellant(s)
Versus
RAJHANS SILK MILLS PVT LTD - Opponent(s)
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Appearance :
MR RJ OZA for Appellant(s) : 1,
None for Opponent(s) : 1,
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CORAM : HONOURABLE MR.JUSTICE K.A.PUJ
and
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 23/11/2009
ORAL ORDER
(Per : HONOURABLE MR.JUSTICE K.A.PUJ) The Commissioner of Central Excise, Surat-II, Surat, has filed this Tax Appeal under sec. 35-G of the Central Excise Act, 1944 proposing to formulate the substantial questions of law.
Mr. R.J. Oza, learned Sr. Standing Counsel, appearing for the Central Excise Dept has submitted that identical issue was raised by the Central Excise Dept before this Court in Tax Appeal No. 462 of 2008. He has placed a copy of the said order on record. The said Appeal is admitted by this Court and three questions were formulated as substantial questions of law by an order dated 11.9.2009.
TAXAP/1854/2008 2/3 ORDER In view of the above order of this Court, this Appeal is admitted and the following substantial questions of law are formulated for consideration and determination of this Court:
"(1) Whether in the facts and circumstances of the case, the Tribunal is justified in placing reliance on the decision of the Bombay High Court rendered on Om Textile Pvt. Ltd. Vs. CCE, Belarpur, 2006(74) RLT 333 (Bom)?
(2) Whether in the facts and circumstances of the case, the Tribunal is justified 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 has to be taken into account and whether the Tribunal is justified in setting aside the impugned order and remanding the matter to original adjudicating authority for decision afresh?
(3) Whether in the facts and circumstances of the case, the Tribunal was justified or not in allowing claim for refund of respondent contrary to decision of Tribunal in the case of Bharucha & Sons Vs. Commissioner of C. Excise & Customs, Surat-I reported in 2006(205) ELT 1158 (Tri.
Mumbai) wherein the Tribunal has denied refund to the assessee relying on decision of the Apex Court in the case of Flock (India) Pvt.
TAXAP/1854/2008 3/3 ORDER Ltd.rReported in 2000(120) ELT 285 (SC)?"
Notice to the other side.
Additional Paper-book, if any, shall be filed within three months from today.
To be heard along with Tax Appeal No. 462 of 2008.
(K.A. Puj, J.) (Rajesh H. Shukla, J.) (hn)