Principal Commissioner Of ... vs M/S.O S I Systems Private Limited

                  THE HON'BLE SRI JUSTICE P.SAM KOSHY
                                       AND
THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
                               C.E.A.No.37 of 2019
JUDGMENT:(per Hon'ble Sri Justice P.SAM KOSHY)
                    Heard Sri A. Rama Krishna Reddy, learned Standing

      Counsel for the appellant.

      2.            The instant appeal is filed by the Department assailing

      the order of the Tribunal, dated 05.11.2018 in Customs Appeal

      No.30789 of 2018. The sole issue in the instant case is whether

      CESTAT refund under notification 102/2007 is available when

      goods are collected on payment of appropriate rate of VAT. The

      challenge was primarily on the ground that the learned Tribunal

      has also the authority herein the appellant at the first instance had

      not taken into the consideration of the Judgment of the Supreme

      Court in case of Collector of C.Ex., Vadodara v. Dhiren

      Chenical Industries 1. However, upon perusal of the pleadings

      and submissions made by the learned counsel for the appellant,

      we are of the considered opinion that the Tribunal in the course of

      deciding the matter and confirming the order passed by the


1
    2002(139)E.L.T.3(S.C.)
                                          2


      Assessing Authority at the first instance, relied upon two of the

      recent decisions passed by the Tribunal one in the case of Gazal

      Overseas v. Commissioner of Customs, New Delhi 2 decided on

      02.09.2015 and another in the case of Malhotra Imports and

      Exports Corporation v. Commissioner of Customs, Chennai-IV 3

      decided on 03.07.2017. The decision passed by the Tribunal at

      Chennai also has referred to the decision of the Supreme Court in

      the case of Dhiren Chemical Industries's case (supra) and

      thereafter have taken a decision. It is not the case of the appellant

      that the Judgment in the case of Gazal Overseas's case (supra) of

      that matter Malhotra Imports and Exports Corporation's case

      (supra) has been challenged any further and the order has been

      held to be bad in law.          In the absence of such stand by the

      Department if the Tribunal has relied upon their own decision

      rendered in the recent past which has not been held to be bad, the

      order cannot be said to be in any manner bad in law or

      unreasonable. The Tribunal in addition to relying on the aforesaid

      two decisions have also relied upon the circular of the Department


2
    2016(332)E.L.T.767(Tri.-Del.)
3
    2018(359)E.L.T.535(Tri.Chennai)
                                       3


     itself i.e. CBEC Circular No.6 of 2008 dated 28.04.2008, in the

     light of the Judgment of the Supreme Court in the case of Dhiren

     Chemical Industries's case (supra).

3.      For the aforesaid reasons, we do not find any strong case made

out by the appellant in calling for an interference of the impugned

order dated 05.11.2018 and the appeal thus fails and accordingly is

rejected. No order as to costs.

4.            As a sequel, miscellaneous applications pending if any

in this appeal, shall stand closed.

                                                        _________________
                                                         P.SAM KOSHY, J



                                          ________________________________
                                          LAXMI NARAYANA ALISHETTY, J

01.09.2023

myk 4 THE HON'BLE SRI JUSTICE P.SAM KOSHY AND THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY C.E.A.No.37 of 2019 (per the Hon'ble Sri Justice P.SAM KOSHY) 01.09.2023 MYK