Kolkata-Iv vs M/S. Skill Dye Chem Private
2022 Latest Caselaw 2563 Cal/2

O-154

                          CEXA/3/2020
              IA No.GA/2/2020 (Old No.GA/38/2020)

                 IN THE HIGH COURT AT CALCUTTA
                      Special Jurisdiction
                          ORIGINAL SIDE


                                   COMMISSIONER OF CENTRAL EXCISE,
                                   KOLKATA-IV

                                          -Versus-

                                   M/S. SKILL DYE CHEM PRIVATE
                                   LIMITED

                                                            Appearance:
                                                  Mr. K. K. Maiti, Adv.
                                                  ...for the appellant.

                                           Mr. Atish Dipankar Ray, Adv.
                                                 ...for the respondent.

BEFORE:

The Hon'ble JUSTICE T.S. SIVAGNANAM

-And-

The Hon'ble JUSTICE SUPRATIM BHATTACHARYA

Date : 26th September, 2022.

The Court : This appeal filed by the revenue under

Section 35G of the Central Excise Act, 1944 (the 'Act' for

brevity) is directed against the order in original dated 20th

February, 2019 passed by the Customs, Excise and Service Tax

Appellate Tribunal, East Regional Branch, Kolkata (the

Tribunal) in Excise Appeal No.75405/2017.

The appeal was admitted on 7th January, 2021 on the

following substantial question of law:

"Whether the learned Tribunal was justified in allowing the appeal when the Constitutional validity of Rule 8(3A) of the Central Excise Rules, 2002 is pending consideration before the Hon'ble Supreme Court ?"

We have heard Mr. K.K. Maiti, learned standing Counsel

appearing for the appellant/revenue and Mr. Atish Dipankar Roy,

learned Counsel for the respondent/assessee.

The appeal was admitted for the purpose of scrutinising

the effect of the order passed by the Hon'ble Supreme Court

dated September 24, 2015, which had granted an order of stay

and the decision of the High Court of Gujarat in the case of

Indsur Global Ltd. vs. Union of India, 2014(310) E.L.T 833

(Guj.). Identical matters came up before this Court on earlier

occasion and the Court upon perusal of the material papers

found the tax effect in these cases were less than the

threshold limit fixed in the Circular issued by the Central

Board for pursuing appeals before the High Court. Therefore,

the appeals filed by the revenue were disposed of by observing

that the tax effect is less than the threshold limit. However,

the legal issue as regards validity of the Rule 8(3)A of the

Central Excise Rules, 2002, which was struck down by the

Gujarat High Court in the case of Indsur Global Ltd. and which

judgment has been stayed by the Hon'ble Supreme Court, had been

left over. In the instant case from the order in original dated

January 5, 2016 we find that the demand of Central Excise duty

was Rs.1,57,553/-. If that be so, the revenue cannot pursue

this appeal on the ground of low tax effect subject of course

with regard to the legal issue regarding the validity of Rule

8(3)A of 2002 Rules.

Similar view was taken by this Court in the case of

Commissioner of Central Excise, Kolkata-IV, vs. Sai

Construction in CEXA/31/2021 dated February 3, 2022.

Thus, following the above principle, the finding rendered

by the Tribunal with regard to the validity of Rule 8(3A) of

the Rule is set aside and the legal issue is left open and

shall abide by the decision of the Hon'ble Supreme Court.

We make it clear that the appeal filed by the revenue has

been disposed of on the ground of low tax effect and

consequently no recovery can be effected from the

respondent/assessee.

(T.S. SIVAGNANAM, J.)

(SUPRATIM BHATTACHARYA, J.)

S.Das/As.