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SCA/2087/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2087 of 2011
=================================================
VINY
ROYAL PLASTICOATES LTD & 1 - Petitioner(s)
Versus
UNION
OF INDIA & 2 - Respondent(s)
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Appearance
:
MR
DEVAN PARIKH for Petitioner(s) : 1 - 2.
DS AFF.NOT FILED (N) for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2 -
3.
MR YN RAVANI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 17/03/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The
petitioners seek direction for granting of refund/relief as directed
by the Customs Excise & Service Tax Appellate Tribunal (CESTAT
for short) in its order dated 13.10.2010.
2. In
response to the notice for final disposal issued by us, learned
counsel Mr. Ravani appeared for the respondents. We have heard
learned counsel for the both the sides for final disposal of the
petition.
3. It
is not in dispute that by judgment dated 13.10.2010 annexed at
Annexure-H, CESTAT allowed the appeal of the petitioners. In the said
order, the Tribunal made following observations :-
” As such having held that the appellant was compelled by the
Revenue not to cross utilize such credit, as a result of which they
have to pay the duty out of PLA, it has to be held that the refund of
such credit is required to be made in cash, on success of their
claim, as the appellant is not in a position now to such cross
utilization because of the provisions of Cenvat Credit Rules, 2002.
7. Having answered the above legal issues in favour of the assessee,
we find that there is some factual disputes as regards the
utilisation of AED (T&TA) credit towards payment of basic excise
duty as also in respect of AED(GSI) and also in respect of the period
involved. Commissioner (Appeals) has observed that the period to
which accumulated credit is sought to be refunded is from 1997-2000
whereas the notice placing the assessee under embargo was issued
subsequently, the appellant in their memo of appeal has shown the
disputed period as April 2000 to June 2001. For verification of the
factual decisions, we set aside the impugned order and remand the
matter to the original adjudicating authority for doing the needful,
in the light of the law declared on the disputed legal issues. The
appeal is disposed off in above manner.”
4. It
is not in dispute that this is the second round of litigation and
previously the petitioners had succeeded right upto the level of the
Tribunal. It is the case of the petitioners that despite such orders
in their favour, the respondents are not processing the refund claim
of the petitioners without any justifiable grounds.
5. Counsel
for the respondents had previously pointed out that against the
judgment of the Tribunal dated 13.10.2010, the department had
preferred an appeal.
6. We
had accordingly taken up the appeal for admission hearing today. By a
separate order passed today, we have admitted the appeal. However, we
find that in cognate matters, reliance on which was placed by the
respondents and which are pending before this Court, no stay has been
granted. In OJCA No.149 of 2011 in Tax Appeal No. 607 of 2011
department has moved an application for stay and the same has not
been granted.
7. Under
the circumstances, subject to outcome of the Tax Appeal No. 607 of
2011, respondents would have to proceed further and process the
refund claim of the petitioners in terms of the order passed by the
Tribunal dated 13.10.2010. This may be done expeditiously and
preferably within 6 weeks from today.
8. With
above observations, this petition is disposed of.
(Akil
Kureshi, J. )
(Ms.
Sonia Gokani, J. )
sudhir
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