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TAXAP/127720/2008 1/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1277 of 2008
=========================================================
COMMISSIONER
- Appellant(s)
Versus
KIRAN
PROCESSORS P LTD - Opponent(s)
=========================================================
Appearance
:
MR
DARSHAN M PARIKH for
Appellant(s) : 1,
SERVED BY AFFIX.-(R) for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 24/06/2009
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN)
Tribunal
in its order directed refund of the amount though the fixation of
Annual Production Capacity was not challenged by the assessee on the
basis of decision in case of Om Textile Pvt. Ltd. v. CCE, Belapur,
Navi Mumbai, reported in 2006(74)RLT.
We
are of the view that in view of judgement of the Apex Court in case
of Collector of Central Excise, Kanpur v. Flock(India) Pvt. Ltd.
reported in 2000(10)E.L.T.285(S.C.), view expressed by the tribunal
placing reliance on Bombay High Court judgement cannot be justified.
Order
passed by the tribunal directing refund is set aside since assessee
has not challenged the order fixing the Annual Production Capacity
under Rule 96ZP of the Central Excise Rules, 1944.
Substantial
question of law is answered in favour of the revenue and against the
assessee. Order of the tribunal is set aside.
Appeal
is disposed of accordingly.
(K.S.RADHAKRISHNAN,C.J.)
(AKIL
KURESHI,J.)
(raghu)
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