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TAXAP/537/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 537 of 2011
=========================================================
COMMISSIONER,
CENTRAL EXCISE &CUSTOMS DEPTT, SURAT-I - Appellant(s)
Versus
MAHESH
HARLALKA - Opponent(s)
=========================================================
Appearance :
MR
RJ OZA for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 11/11/2011
ORAL
ORDER
(Per
: HONOURABLE MS JUSTICE SONIA GOKANI)
Department
has challenged the order of the CESTAT dated 23rd
August 2010, proposing following questions for consideration of this
Court :
“(a) “Whether
in the facts and circumstances of the case, the Tribunal
has committed substantial error of law in remanding case of the
respondent back to the adjudicating Commissioner to arrive at finding
of liability of individuals as regards the duty is concerned ?”
(b) Whether the Tribunal was
correct in observing impermissibility to demand duty jointly upon the
offenders and directing to fix separate/individual liability of each
of the offenders including the respondent when jointly omission and
commission of the offenders in perpetuating the fraud and causing
loss of revenue are intermingled that individual liability of
offenders inter se can not be ascertained ?”
(c) Whether in the backdrop
of jurisdictional fact that CENVAT credit of Rs. 78,93,948/- was
fraudulently availed by the said three persons in the name of the
said non-existent unit is admitted and established beyond doubt and
the law itself provides that levy and collection of duty are two
different concepts. The former i.e., levy arises at initial stage by
virtue of the provisions under Central Excise Act, whereas collection
of duty arises at a subsequent stage. Since the acts of defrauding
the exchequers by the said three persons are intermingled, a
separate/proportionate liability of the said three persons cannot be
ascertained. In such situation, whether the Tribunal was correct in
ordering to fix individual liability of the said three persons
including the respondent, where the law itself provides that a fraud
and forgery vitiate everything and the person wronged has his remedy
against all, or any one or more of them at his choice; for every
wrong doer is jointly and severally liable for the whole damage, and
it does not matter whether they acted between themselves as equals,
or one of them as agent or broker ?”
(d) Whether in the facts and
circumstances of the case, the Tribunal has committed substantial
error of law by disposing appeal of the respondent without obtaining
consent of the parties and passing impugned order by applying
decision of Yash Silk Mills (supra) ?
(e) Whether the impugned
order passed by the Tribunal can be said to be passed in accordance
with law ?”
On
having heard learned counsel Shri R.J.Oza and having perused the
orders of the adjudicating authorities with his assistance, it can be
gathered that the Tribunal has sought to rely on the judgment of
Yash Silk Mills and others rendered in A/2517-2532/WZB/AHD/2008 dated
20th November 2008. The said judgment was challenged by
the Department before this Court and other such matters having
similar facts raising identical questions of law, being Tax Appeal
No.1 to 3 of 2011, while considering the issues proposed by the
Department, the Tax Appeals were not entertained on the ground that
there was no question of law which was found to be emerging from the
record and those Tax Appeals have been accordingly not entertained.
As
facts in the present appeal and the questions proposed are
identical, this Tax appeal deserves no further meritorious
consideration as no other and further grounds are raised to decide
otherwise. Tax Appeal is, therefore, dismissed.
(Akil
Kureshi, J.)
(Ms.Sonia
Gokani, J.)
(vjn)
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