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TAXAP/1575/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1575 of 2008
=========================================
THE
COMMISSIONER OF CUSTOMS (PREVENTIVE) - Appellant(s)
Versus
M/S
GENERAL FOODS LTD (V & F UNIT) - Opponent(s)
=========================================
Appearance :
MS
AMEE YAJNIK for Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 24/02/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
Commissioner of Customs (Preventive), Jamnagar has filed this Tax
Appeal under Section 130 of the Customs Act, 1962, proposing to
formulate the following substantial questions of law for
determination and consideration of this Court:
(i) Whether,
in the facts and circumstances of the case, the Hon’ble CESTAT was
justified in placing reliance upon the ratio of the decisions in the
case of [1] M/s Acalmar Oils & Fats Ltd. v/s CC & CE,
Hyderabad, 2007 [79] RLT 724 [Tri. Bang], [2] Godrej Ind. Ltd. v/s
Union of India, 2004 [171] EL 5 [Bom], and [3] Bharat Petroleum
Corporation Ltd. v/s Commissioner of Customs, Mumbai, 2003 [58] RLT
219 [Tri. Mum], when the facts and circumstances of these cases are
different to that of the present one?
(ii) Whether,
in the facts and circumstances of the case, the Circular issued by
the Central Board of Excise & Customs I.e. Circular
No.96/2002-CUS dated 27.12.2002 is not binding on the Departmental
Officers?
Heard
Ms.Amee Yajnik, the learned Standing Counsel appearing for the
Revenue and perused the orders passed by the authorities below.
While
disposing of all the Appeals, the Tribunal has observed that the
lower authorities have relied upon the Board’s Circular wherein the
issue stands decided by the Tribunal judgment laying down that the
actual quantity discharged which will be leviable to duty and not
the quantity as disclosed in alleged survey report. The Tribunal
has also referred to the decisions of various Tribunals. The
Tribunal has further observed that the Assistant Commissioner in his
order has held that though the issue is covered by the earlier
decision of the Tribunal, as there is subsequently a Board Circular,
the Tribunal decision need not be followed by him. The Tribunal was
therefore of the view that the Tribunal decision lays down the
correct interpretation of law and cannot be ignored on the ground
there is a contrary circular of the Board. Inasmuch as the issue is
covered by the various decisions of the Tribunal. Thus the Tribunal
has followed its own orders instead of following the Circular of the
Board.
From
the tenor of the questions framed by the Revenue and considering the
discussion made by the Tribunal in its order, we are of the view
that no substantial question of law arises out of the order of the
Tribunal. The Appeal is therefore summarily dismissed.
(K.A.Puj,J)
(Rajesh
H. Shukla,J)
Jayanti*
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