Gujarat High Court Case Information System
Print
TAXAP/1337/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1337 of 2010
=========================================================
COMMISSIONER
OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX - Appellant(s)
Versus
M/S
WESTERN ELECTRIC & ENGINEERING CO. - Opponent(s)
=========================================================
Appearance :
MR
YN RAVANI for
Appellant(s) : 1,
M/S TRIVEDI & GUPTA for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 21/04/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
In
this appeal filed by the revenue challenging the order of CESTAT
dated 06/11/2009 in Appeal No.3252 of 2000, we had issued Notice for
final disposal by our order dated 24/03/2011 making following
observations:
“Counsel
for the Revenue submitted that the High Court had remanded the matter
before the Tribunal only with respect to penalty, in view of the
decision of the Apex Court in the case of Union of India v.
Dharamendra Textile Processors.
Upon remand, the Tribunal, by the impugned orders, further remanded
the proceedings before the original Adjudicating Authority not only
on the question of penalty but on other questions, which the
assessee had never challenged.
Considering
the submissions made, issue notice for final disposal, returnable on
7th April 2011.”
Having
heard learned Counsel for the parties, we noticed that undisputedly
the Tribunal’s previous order disposing of Appeal No.3252 of 2000 was
carried in appeal before the High Court by the revenue in Tax Appeal
No.820 of 2005. The High Court by an order dated 18/02/2009 disposed
of the appeal in following manner.
“Heard
the learned counsel appearing for the parties.
In
view of the judgment of the Apex Court in the case of Union of
India v. Dharamendra Textile Processors, 2008 (231) E.L.T. 3,
the matter is required to be remanded to the Tribunal for fresh
consideration and decision in accordance with law. The order of the
Tribunal is therefore set aside. The matter is remanded to the
Tribunal for fresh consideration and decision in accordance with
law. The Tribunal shall decide the issue afresh within a period
of three months from the date of receipt of a copy of this order.
The
appeal stands disposed of accordingly.”
It
is also undisputed that pursuant to such remand order of the High
Court, the Tribunal by the impugned order dated 06/11/2009 further
remanded the proceedings before the adjudicating authority making
following observations:
“5. We
have considered the submissions. We agree with learned advocate that
matter has to be considered afresh as per the direction of the
Hon’ble High Court. It is settled law that the officers of the
department when acting as adjudicating authorities are required to
follow judicial discipline and therefore we find that Commissioner
(Appeals) has not dealt with the issue relating to applicability to
Section 11 AC of Central Excise Act, 1944 properly. Further, we also
find that there have been several decisions on the issue of
suppression when two show cause notices have been issued. This
aspect also has not been dealt with in greater detail. Therefore,
both these issues are required to be considered afresh. Another
contention putforth by the learned advocate was that cum duty benefit
has not been extended. We find that this is also correct. In view
of the above submissions we consider that it would be appropriate to
remand the matter to the Original Adjudicating Authority who shall
consider the issue afresh. We make it clear that Original
Adjudicating Authority shall consider the issue of limitation in the
light of the fact that two show cause notices have been issued,
liability of penalty under Section 11 AC of Central Excise Act, 1944
and interest under Section 11 AB of Central Excise Act, 1944 in
respect of duty demand relating to the period prior to 21.9.96 and
after working out the liability of duty, consider quantum of penalty
under Rule 209 (A) on Shri Narendra Buth. We makt it clear that the
Original Adjudicating Authority shall extend the cum duty benefit
while working out the duty demand. We also direct the Original
Adjudicating Authority shall also consider whether option of payment
of duty, interest and penalty to the extent of 25 % of duty within
thirty days of the adjudication order is required to be extended or
not in accordance with law. Accordingly, appeals are allowed by way
of remand.”
We
find that the Tribunal committed an error in further remanding the
proceedings to the adjudicating authority and reopening several
issues which were never at large before us. We may recall that
against the previous order of the Tribunal, assessee had carried no
further appeal to the High Court. Insofar as the assessee is
concerned, therefore the Tribunal’s view was final. It was only on
the revenue’s appeal on the issue of reduced penalty that the High
Court remanded the proceedings for fresh consideration before the
Tribunal.
In
that view of the matter, we find that the order of the Tribunal
further remanding the proceedings before the adjudicating authority
reopening the entire issue needs to be set aside. Ordered
accordingly. Resultantly, Appeal No.3252 of 2000 stands restored to
the Tribunal. Tribunal is requested to dispose of the same bearing
in mind the observations of the High Court in Tax Appeal No.820 of
2005 order dated 18/02/2009.
(AKIL
KURESHI, J.)
(SONIA
GOKANI, J.)
sompura
Top