Gujarat High Court Case Information System
Print
TAXAP/984/2010 2/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No.984 of 2010
===================================================
THE
COMMISSIONER - Appellant(s)
Versus
M/S.ISHAN
TECHNOLOGIES PVT LTD.-Respondent(s)
===================================================
Appearance
:
MS
SEJAL K MANDAVIA for Appellant (s) : 1,
MR PV SHETH, for
Respondent(s) :
1,
===================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 22/04/2010
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
After
condoning the delay caused in filing the Tax Appeal, as the papers
of the Tax Appeal are available with the Court, with the consent of
the learned advocates for the parties, the appeal is taken up for
hearing today.
Appellant-revenue
has challenged order dated 24.06.2008 made by the Customs, Excise
and Service-tax Appellate Tribunal (the Tribunal), proposing the
following question:
Whether
the Hon ble Tribunal was justified in holding that credit can be
allowed merely on the ground of the invoices of manufacturer
if the goods are not manufactured by him?
At
the outset the learned Standing Counsel for the appellant-revenue
submits that the question as proposed does not arise from the
impugned order in relation to the present respondent and seeks
permission to re-frame the question proposed. Permission is granted.
Heard the learned advocates for
the parties.
Admit.
The following substantial question of law arises for consideration:
Whether
the Customs, Excise and Service Tax Appellate Tribunal was justified
in setting aside the penalty imposed on the respondent under Rule 26
of the Central Excise Rules, 2002 without recording any findings?
The
learned Standing Counsel has assailed the impugned order made by the
Tribunal submitting that the order is absolutely silent as regards
what weighed with the Tribunal while setting aside the penalty
imposed on the respondent.
Learned
advocate for the respondent has submitted that insofar as the
question of imposing penalty on the present respondent is concerned,
the same is only consequential to the order passed in case of the
main respondent i.e. M/s.Manaksia Limited. In the circumstances, it
was not necessary for the Tribunal to record independent findings in
relation to each of the parties, the Tribunal having passed a
consolidated order.
As
can be seen from the impugned order of the Tribunal, the Tribunal
has discussed the facts of the case only in light of the main issue,
namely, as to whether M/s.Manaksia Limited was entitled to avail of
CENVAT Credit in relation to the Slow Speed Alternator purchased by
it from the respondent. In the entire order there is no reference to
the penalty imposed upon the present respondent and as to why the
adjudicating authority was not justified in imposing the said
penalty. While deciding the issue as regards the entitlement
of M/s.Manaksia Limited to avail of CENVAT Credit, the Tribunal
has also set aside the penalty imposed on the present respondent.
Thus,
insofar as the case of the present respondent is concerned, the
impugned order of the Tribunal is totally silent and no reasons are
forthcoming as to why the penalty imposed upon the respondent is not
justified. It is settled legal position as held by the Apex Court in
a catena of decisions that the Tribunal being the final authority on
facts, it is incumbent upon it to appreciate the evidence; consider
the reasoning of the adjudicating authority and assign its own
reasons as to why it disagrees with the reasons and findings given
by the adjudicating authority. Unless adequate reasons are given,
merely because it is an appellate authority, the Tribunal cannot
brush aside the reasoning and
findings recorded by the adjudicating authority.
In
the facts of the present case, in absence of any finding having been
recorded by the Tribunal nor any reasons having been assigned as to
why the penalty imposed upon the respondent is required to be set
aside, it is not possible for this Court to state one way or the
other as to whether the Tribunal was justified in setting aside the
said penalty. The impugned order of the Tribunal, being a
non-speaking order insofar as the case of the present respondent is
concerned, cannot be sustained to that extent.
In
the light of the aforesaid, it is held that in the Tribunal was not
justified in setting aside penalty imposed upon the respondent under
Rule 26 of the Central Excise Rules, 2002 without assigning any
reasons.
The
appeal is accordingly allowed. The impugned order of the Tribunal is
set aside to the extent it sets aside the penalty imposed upon the
respondent under Rule 26 of the Rules. Tax Appeal No.E 726 of 2007
filed by the respondent M/s.Ishan Technologies Private Limited is
restored to the file of the Tribunal. The Tribunal shall decide the
matter afresh in accordance with law, after giving the parties an
opportunity of hearing.
Sd/-
[D.
A. MEHTA, J]
Sd/-
[
H.N.DEVANI, J]
***
Bhavesh*
Top