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TAXAP/1852/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1852 of 2009
=========================================
COMMISSIONER
OF CENTRAL EXCISE & CUSTOMS SURAT-I - Appellant(s)
Versus
PANCHMUKHI
PROCESSORS PVT LTD - Opponent(s)
=========================================
Appearance :
MR
RJ OZA for
Appellant(s) : 1,
MR PR NANAVATI for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MS.JUSTICE HARSHA DEVANI
Date
: 20/10/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
appellant-Revenue has filed this Tax Appeal under Section 35-G of
the Central Excise Act, 1944 proposing to formulate the following
substantial questions of law for determination and consideration of
this Court.
“[1] Whether
Rule 96 ZQ(5) (ii) of Central Excise Rules, 1944 has inbuilt concept
of discretion and the adjudicating authority as well as appellate
authority under the Central Excise Act, 1944 can exercise
discretionary authority in reducing penalty for the amount less than
amount equivalent to duty liability of the independent processor?
[2] Whether
in the facts and circumstances of the case, the Tribunal has
committed substantial error of law in not interfering with appeal of
the revenue on the ground that there was no valid ground for
enhancement of penalty amount imposed by the Commissioner (Appeals),
Central Excise & Customs, Surat-I?”
This
Court has issued notice for final disposal on 01.09.2010, in view of
the decision of the Hon’ble Apex Court in the case of Union of
India Vs. M/s. Dharmandra Textile Processors reported
in 2008 (231) ELT 3 (SC).
Heard
Mr. R.J. Oza, learned senior Standing Counsel appearing for the
appellant-Revenue and Mr.Devang Joshi, learned advocate for
Mr.P.R.Nanavati, learned advocate appearing for the respondent.
Having
considered the facts and circumstances of the case and judgment of
the Hon’ble Apex Court in the case of Union of India Vs. M/s.
Dharmandra Textile Processors (supra), the matter requires to be
considered by the Tribunal afresh. We, therefore, set aside the
impugned order passed by the Tribunal and remanded the matter to the
Tribunal for passing fresh order, in accordance with law.
The
Tribunal shall pass fresh order, preferably within a period of three
months from the date of receipt of the copy of this judgment. This
Tax Appeal stands disposed of accordingly.
[K.A.PUJ,
J.]
[HARSHA
DEVANI, J.]
parmar*
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