Commissioner Of Cgst & Central ... vs M/S. Bengal Beverages Private ...
2022 Latest Caselaw 2844 Cal/2

OD-16 & 17


                       IN THE HIGH COURT AT CALCUTTA
                           SPECIAL JURISDICTION
                              ORIGINAL SIDE

                               CEXA/17/2022
                              IA No. GA/1/2022
   COMMISSIONER OF CGST & CENTRAL EXCISE, HOWRAH COMMISSIONERATE
                                VS.
               M/S. BENGAL BEVERAGES PRIVATE LIMITED

                               CEXA/18/2022
                              IA No. GA/1/2022
   COMMISSIONER OF CGST & CENTRAL EXCISE, HOWRAH COMMISSIONERATE
                                VS.
               M/S. BENGAL BEVERAGES PRIVATE LIMITED

BEFORE :

THE HON'BLE JUSTICE T.S. SIVAGNANAM
             And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 24th November, 2022

                                                                Appearance :
                                         Mr. Uday Shankar Bhattacharya, Adv.
                                              Ms. Aishwarya Rajyashree, Adv.
                                                          ...for the appellant.

                                                      Mr. Ankit Kanodia, Adv.
                                                     Ms. Megha Agarwal, Adv.
                                                         ...for the respondent.

The Court : We have heard Mr. Uday Shankar Bhattacharya, learned

standing counsel appearing for the appellant/revenue and Mr. Ankit Kanodia,

learned counsel for the respondent/assessee.

On perusal of the order passed by the learned Tribunal, we find that the

learned Tribunal had followed the decision of the High Court of Karnataka in

Shree Renuka Sugar Limited, 2014 (302) ELT 33 (Kar.) against which the

revenue has preferred appeal before the Hon'ble Supreme Court. It is further

stated that though the appeal was dismissed on account of some technical

defect, subsequently the defect has been removed and the matter is yet to be

listed for hearing before the Hon'ble Supreme Court.

Learned counsel appearing for the respondent submitted that during the

pendency of the proceedings roughly about 50% of the amount claimed by the

respondent as refund has been paid. However, for the remaining claim as well

as the same claim, multiple show cause notices have been issued and the

appeals are pending before the Commissioner of Appeals.

Considering these facts, these appeals stand admitted on the following

substantial questions of law:-

"a) Whether the availment of Cenvat Credit of a sugar cess by respondent

is irregular since, there were no provisions of the same more

specifically in Rule 3(I) of the Cenvat Credit Rules, 2004 for availment

of Cenvat Credit on sugar cess ?

b) Whether the Respondent is entitled to Cenvat credit on sugar cess

under sub-section (i) of Section 3 of Sugar Cess Act, 1982, since, the

sugar cess on sugar was collected for development of industry and for

matters connected therewith ?

c) Whether the Learned Tribunal erred in law in not holding that once

the SLP has been filed before the said Hon'ble Supreme Court of India

and the same has entertained, the judgment of the Hon'ble High Court

is in jeopardy and subject matter of this unless determined by the last

court, cannot be said to have attained finality in view of the settled

principles of law as held by the Hon'ble Apex Court?

d) Whether the Learned Tribunal erred in law in not considering that the

Hon'ble Supreme Court of India was pleased to grant leave in the

petition for Special Leave to Appeal (C) No.26630 of 2014 and

adjourned the hearing of SLP(C) No.5101, 5104 and 5086 of 2015 filed

by the Commissioner of Central Excise, Custom & Service Tax,

Belgaum along with order dated 06.08.2013 passed by the Hon'ble

Karnataka High Court in the case of Shree Renuka Sugar Limited

being CEA No.14 of 2008 [2014(302) ELT 33 (Kar.)] ?

e) Whether the Learned Tribunal erred in law in holding that the

Judgment of the Karnataka High Court in the case of Shree Renuka

Sugar Limited reported in [2014(302)ELT 33 (Kar.)] and the same has

attained finality in view of dismissal of the SLP of the appellant by the

Hon'ble Supreme Court of India though as per the status of the Diary

No.24477/2014 the SLP(C) No.26630 of 2014 of the Department of

Revenue is still pending ?"

The learned Advocate for the appellant shall file requisite number of

informal paper books prepared out of Court including therein all relevant papers

and documents within ten weeks hence by serving copies thereof on the learned

Advocate for the respondent.

Settlement of index and all other formalities are dispensed with.

Service of notice of appeal stands waived.

Let both the appeals be listed after twelve weeks.

The stay applications stand closed.

The respondent is at liberty to take out an application bringing certain

facts on record and if they are so advised, can seek for certain directions in this

regard.

(T.S. SIVAGNANAM, J.)

(HIRANMAY BHATTACHARYYA, J.)

s.pal/SN.