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TAXAP/1731/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1731 of 2009
=========================================
COMMISSIONER
OF CUSTOMS (PREVENTIVE) - Appellant(s)
Versus
VENKATESH
KARRIERS LTD - Opponent(s)
=========================================
Appearance :
MS
AMEE YAJNIK for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 12/08/2010
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
Appellant-revenue
has challenged the order dated 23.3.2009 made by the Customs, Excise
& Service Tax Tribunal (the Tribunal), proposing the following
questions:
“[a] Whether
claim of refund arising on finalization of provisional assessment
under section 18(2) of the Customs Act, 1962, requires to pass
through the rigours of unjust enrichment or not?
[b] Whether
the decision of the Tribunal is contrary to the law laid down by the
Hon’ble Supreme Court in the case of M/s Bussa Overseas and
Properties Pvt. Ltd. v/s U.O.I., reported at 2004 (164) ELT –
A177 (S.C.) and Sahakari Khand Udyog Mandal Ltd. v/s CCE & CUS.,
reported at 2005 (181) ELT 328 (SC)?
[c] Whether
in the facts and circumstances of this case, the impugned decision
and order dated 23.03.09 passed by the Hon’ble Tribunal is
non-speaking order passed merely by referring to the Larger Bench
decision in the case of Hindustan Zinc Ltd. v/s U.O.I., reported in
2009 (233) ELT 61 (Raj) which is not at all applicable in this case?
[d] Whether,
in the facts and circumstances of the case, the impugned decision and
order dated 23.03.09 of the Hon’ble tribunal was right in rejecting
the Revenue’s appeal by simply reproducing paragraph 3 of the order
of the Commissioner (Appeals) wherein reference to the decision in
the case of M/s Hindalco Industries Ltd., 2007 (215) ELT 113
(Tri-Ahmd) is made and without analyzing the facts in detail of this
case with reference to the facts of the decision relied upon, and,
therefore, is contrary to the decision of the Apex Court in case of
Commissioner of Central Excise, Bangalore, reported in 2008 [232] ELT
577 (SC)?”
It
is an accepted position that the controversy involved in the present
appeal stands concluded by a decision of this Court in case of
Commissioner of Customs v. M/s. Hindalco
Industries Ltd.,
2008 (231) ELT 36 (Gujarat), whereby the issue has been decided
against the revenue. In the circumstances, it is not necessary to
set out facts and contentions in detail.
Following
the decision of this Court in case of Commissioner of Customs
v. M/s.Hindalco Industries Ltd.
(supra), the appeal is dismissed.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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