Gujarat High Court
Balkrishna Industries Ltd. vs The Commissioner Of Customs, ... on 18 January, 2021
Bench: J.B.Pardiwala, Ilesh J. Vora
C/TAXAP/56/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TAX APPEAL NO. 56 of 2020
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In R/TAX APPEAL NO. 56 of 2020
With
R/TAX APPEAL NO. 57 of 2020
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In R/TAX APPEAL NO. 57 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/
and
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
BALKRISHNA INDUSTRIES LTD.
Versus
THE COMMISSIONER OF CUSTOMS, MUNDRA
================================================================
Appearance:
MR PRAKASH SHAH, SR.ADVOCATE with MR DHAVAL SHAH for the
Appellant(s) No. 1
MR DHAVAL D VYAS for the Opponent(s) No. 1
================================================================
CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Page 1 of 5
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C/TAXAP/56/2020 JUDGMENT
Date : 18/01/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
This Tax Appeal under Section 130 of the Customs Act,
1962 (for short, 'the Act 1962') is at the instance of a Public
Limited Company engaged in the manufacturing of 'Tyres' falling
within Chapter 40 of the First Schedule to the Central Excise
Tariff Act, 1985 and is directed against the final order passed by
the Customs, Excise and Service Tax Appellate Tribunal,
Ahmedabad, in the Customs Appeal Nos.C/11524 of 2015 and
11238 of 2016 respectively.
The appellant has proposed the following three questions of
law for the consideration of this Court :
(a) Whether in the facts and in the circumstances of the
case and in law, the Appellate Tribunal was right in
remanding the proceedings to the adjudicating authority for
considering the case afresh when neither the Appellant nor
the Respondent requested for remand of the proceedings ?
(b) Whether in the facts of the case and in law the
Appellate Tribunal was right in remanding the proceedings
to examine the issue afresh when indisputably the refund of
Rubber Cess claimed by the Appellant was not paid in
pursuance of any assessment order and no factual aspect
was required to be reexamined by the adjudicating
authority?
(c) Whether in the facts of the case and in law, the
Appellant is entitled to refund of Rubber Cess ?
C/TAXAP/56/2020 JUDGMENT
Both the Tax Appeals are ordered to be admitted on the
above referred questions of law and are taken up for final
hearing forthwith with the consent of the learned counsel
appearing for the parties.
We have heard Mr.Prakash Shah, the learned senior
counsel assisted by Mr.Dhaval Shah, the learned counsel
appearing for the appellant, and Mr.Dhaval Vyas, the learned
standing counsel appearing for the respondents.
The appellate tribunal, while remanding the matters for de
novo consideration, held as under :
"4. We have heard both the sides and perused the case
records. We find that the Bills of Entry were assessed at
"zero" rate of duty and the amount was debited in Bond.
The issue involved is only of rubber cess. As per Appellant if
there is no duty charged on Bill of Entry, in that case there
was no question of challenging the assessment. We find that
the Appellate Authority has held that since the assessment
order has not been challenged the refund claim is not
maintainable. He has relied upon the Apex Court judgment
in case of Flock (India) P. Ltd and Priya Blue Industries
(supra). Further he has also held that no documentary
evidence has been provided. However we find that the
contentions raised by the Appellant in their appeal before us
and the judgments cited by them viz. Aman Medical
Products Ltd. 2010 (250) ELT 30 (DEL), Sesa Goa Ltd. 2014
ELT 221 (TRI) as upheld vide Hon'ble Apex Court Sesa Goa
Ltd. 2015 (321) ELT A66 (SC), Whirlpool India Ltd. 2007
C/TAXAP/56/2020 JUDGMENT
(211) ELT 223, Suryalakshmi Cotton Mills 2015 (327) ELT
718 and any other judgments or facts as contended by the
Appellant are required to be taken into consideration while
resolving the present controversy. Also the question of
unjust enrichment has to be considered carefully since as
per the Appellant the amount of such refund amount was
also shown as receivables in Balance Sheet apart from
certificate by the Chartered Accountant. Thus without
expressing any views on merits of the case, we consider it
necessary to send back both the appeals to the adjudicating
authority for reconsidering the case afresh. The Appellant
are at liberty to appear and file their submissions which
they may consider necessary in support of their contentions.
Both the appeals are remanded for de-novo consideration in
above terms and are disposed accordingly."
We are of the view that the appellate tribunal, on its own,
should have looked into the matter on its own merits. For the
purpose of considering the case-law referred to in para-4 of the
impugned order, the matter should not have been remanded.
In view of the aforesaid, this Appeal succeeds and is hereby
partly allowed. The impugned order passed by the appellate
tribunal is hereby quashed and set-aside and the matter is
remitted to the tribunal for being considered afresh on its own
merits in accordance with law. The questions of law are
answered accordingly.
The connected Appeal also stands disposed of in the above
terms.
C/TAXAP/56/2020 JUDGMENT
In view of the disposal of the Appeals, the Civil Applications
would not survive and the same are disposed of accordingly.
(J. B. PARDIWALA, J.)
(ILESH J. VORA, J.)
/MOINUDDIN
