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TAXAP/767/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 767 of 2011
=========================================================
COMMISSIONER
OF CENTRAL EXCISECUSTOMS AND SERVICE TAX,VAPI - Appellant(s)
Versus
M/S
GUARDIAN PLASTICOTE LTD - 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 11th November 2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
This
Appeal is filed by the Revenue challenging decision of the Tribunal
dated 1st October 2010. Following question has been raised
for our consideration :-
“Whether
in the facts and circumstances of the case, the Tribunal has
committed substantial error of law in holding that the appeal of the
revenue cannot be entertained in absence of liberty reserved by the
Tribunal in its earlier order dated 04.06.2010 passed in Appeal no.
ST/391, 394, 403 & 404/2009, decided between the same parties,
against the said order in appeal and dismissed on the ground of
procedural irregularity committed by the revenue in filing appeal
under wrong format ?”
Brief facts are
that previously, the Department had file appeal before the Tribunal
against the present respondent-manufacturer calling in question the
decision of the Commissioner [Appeals] dated 27th July
2009. Such appeal came to be dismissed by the Tribunal on the ground
that the appeal was not properly instituted inas much as the
committee authorizing filing of the appeal had not taken decision to
file the appeal and further that the appeal was not filed in a proper
format.
The said decision
of the Tribunal came to be challenged before us in Tax Appeal No.
2598 of 2010. In some other appeals, under similar circumstances, we
had remanded the proceedings to the Tribunal finding that the
Tribunal ought not to have dismissed the appeals on technical ground
and allowed the Department to pursue the issue on merits. However, in
the present case, we find that the issue on merits itself was covered
against the Department. We, therefore, found no reason to keep the
issue live and only for cosmetic purpose, remanded the proceedings
before the Tribunal only on this ground on 18th August
2011.
It appears that
since the first appeal filed by the Department failed on technical
grounds, the Department preferred fresh appeal against the same
respondent on the same ground, challenging the same order of the
Commissioner. In this Appeal, the Tribunal by its impugned
order dated 1st October 2010, dismissed the appeal on the
ground that once the Tribunal has dismissed the previous appeal,
without giving liberty to file fresh appeal, the Revenue cannot
maintain the appeal on the same set of facts. Though, we have prima
facie some doubt about this view of the Tribunal, since the issue
on merits itself has been held against the Department, in some other
cases, we see no reason to entertain this Appeal. We may make it
clear that this order should not be seen to be confirming the view of
the Tribunal on the maintainability of the subsequent appeal and we
keep the issue open to be considered in appropriate case in future.
Tax Appeal
is dismissed.
{Akil Kureshi, J.}
{Ms. Sonia Gokani,
J.}
Prakash*
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