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TAXAP/2298/2009 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 2298 of 2009
With
CIVIL
APPLICATION No. 489 of 2009
In
TAX
APPEAL No. 2298 of
2009
=========================================================
COMMISSIONER
- CENTRAL EXCISE & CUSTOMS - SURAT - I - Appellant(s)
Versus
OPAL
FABRICS (100 % EOU) - Opponent(s)
=========================================================
Appearance
:
MR
GAURANG H BHATT for
Appellant
None for
Opponent
=========================================================
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
Commissioner of Central Excise & Customs, Surat, 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.
(A)
Whether in the facts and the circumstances of the case, the learned
CESTA Tribunal has erred in law in remanding the matter to the
Original Adjudicating Authority for the determination of the
duty-liability on the finished products under Proviso to Section
3(1) of the Central Excise Act, 1944 ignoring that even there was
not at all any demand of the duty on the finished products in the
Show-Cause-Notice dated 25.10.2004 itself? The demand in the said
Notice dated 25.10.2004 was the duties of excise equal to the
aggregate of the duties of the Customs leviable on raw material,
rejects and the Wastes, rather than on the finished products.
(B)
Whether in the facts and the circumstances of the case, the learned
Tribunal is justified in law in remanding the matter essentially for
the de-novo adjudication by the original adjudicating authority for
the purpose of the re-determination of the Quantum of the Penalty,
as well as, considering the applicability of the Extended Period?
Heard
Mr. Gaurang H. Bhatt, learned Standing Counsel appearing for the
appellant-revenue and perused the orders passed by the authorities
below. So far as, question (A) is concerned, the Tribunal has
observed in its order that the duty chargeable on the finished
products cleared by M/s. Opel Fabrics is to be charged under the
main Proviso of Section 3 of Central Excise Act is not correct. The
Tribunal has further observed that it is settled law that if duty is
demanded on the finished products, duty benefit can not be demanded
on the raw materials. The Tribunal has, therefore, remanded the
matter to the original adjudicating authority in relation to
redetermine the duty liability in the finished products under
Proviso to Section 3(1) of the Central Excise Act, 1944.
Since
the issue is decided in favour of the revenue, there is no question
of raising this question before this Court, we are, therefore, of
the view that the question (A) is not arising out of the order of
the Tribunal.
So
far as, question (B) is concerned the Tribunal has merely remanded
the matter back to the adjudicating authority for de-novo
adjudication for the purpose of re-determination of quantum of
penalty as well as for consideration of applicability of the
extended period. The Tribunal has clearly observed in its order that
this issue was not considered at all by the adjudicating authority
or by the Appellate authority.
Since
the matter is remanded to the adjudicating authority for
consideration of this issue, we are of the view that no question of
law, much less, any substantial question of law is arising out of
the order of the Tribunal. We, therefore, summarily dismiss this Tax
Appeal.
(K.A.
PUJ, J.)
(HARSHA
DEVANI, J.)
Pankaj
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