Kavitha Theatre vs The Assistant Commissioner Of Central ...
2024 Latest Caselaw 26591 Ker

Kerala High Court

Kavitha Theatre vs The Assistant Commissioner Of Central ... on 5 September, 2024

Author: P Gopinath

Bench: P Gopinath

                                                       2024:KER:68018

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
                     WP(C) NO. 39241 OF 2023

PETITIONER:

            KAVITHA THEATRE,
            40/8486, M.G.ROAD, ERNAKULAM, PIN - 682 035,
            REPRESENTED BY ITS MANAGING PARTNER
            MR.SAJU JOHNY.

            BY ADVS.
                    ANIL D. NAIR (SR.)
                    TELMA RAJU
                    AADITYA NAIR



RESPONDENTS:

    1       THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE AND
            CUSTOMS,
            COCHIN COMMISSIONERATE, C.R. BUILDING,
            I.S.PRESS ROAD, KOCHI, PIN - 682 018.

    2       THE COMMISSIONER (APPEALS),
            CENTRAL TAX, CENTRAL EXCISE & CUSTOMS,
            C.R. BUILDING, I.S. PRESS ROAD, KOCHI,
            PIN - 682 018.

            BY ADV R.HARISHANKAR (SC)


     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   05.09.2024,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                  2024:KER:68018
WP(C) 39241/2023                    2

                           JUDGMENT

The petitioner has approached this Court being aggrieved

by Ext.P5 order of the First Appellate Authority (order in

Appeal No.COC-.EXCUS-000-APP-662-2023 dated 17-10-2023).

2. Sri. Anil D. Nair, the learned Senior Counsel appearing

for the petitioner on the instructions of Adv. Telma Raju, would

submit that Ext.P5 order is liable to be set aside on one short

ground. He submits that though orders of the Customs Excise

and Service Tax Appellate Tribunal (CESTAT), Delhi, and the

CESTAT, Chennai, where identical issues were considered by

the Tribunal, were placed before the First Appellate Authority,

a reading of the order of the First Appellate Authority does not

show that those decisions were considered by the First

Appellate Authority. It is pointed out that the First Appellate

Authority conveniently ignored the decisions placed before him

for consideration and also proceeded to hold that the order

issued by his predecessor in an identically situated case also

could not be considered since that order was not challenged

only on account of the litigation policy.

3. The learned Standing Counsel appearing for the

respondents referred to the counter affidavit filed in the writ 2024:KER:68018

petition. He also referred to Ext.P5 order to contend that

though the operative portion of the order does not refer to the

decisions cited on behalf of the petitioner, a reading of the

order in its entirety will clearly show that the First Appellate

Authority had considered the decisions placed before him and

had taken a decision after being aware of the law laid down in

those decisions. It is submitted that no fault could be found

with the First Appellate Authority for having refused to follow

the view taken by his predecessor, as it is open to the First

Appellate Authority to take a different view in the facts and

circumstances of each case. It is submitted that the earlier

order in favour of the petitioner was not challenged only on

account of the litigation policy. Reference is made in this

regard to Ext.R1(a) produced along with the counter affidavit.

4. Having heard the learned Senior Counsel appearing for

the petitioner and the learned Standing Counsel appearing for

the respondents, I am of the view that the writ petition can be

allowed on the short ground that the order of the First

Appellate Authority (Ext.P5) does not indicate that he had

considered the decisions of the Tribunal, which according to

the petitioner are squarely in its favour. While it may be open 2024:KER:68018

to the First Appellate Authority to draw his own conclusions

from the view taken by the Tribunal in the decisions placed

before him, the order must show that he was alive to the factual

circumstances and to the view taken by the Tribunal in

decisions placed before him by the petitioner, and there must

be some discussion in the order as to why those decisions are

not applicable in the case of the petitioner. In the absence of

any such discussion, it can only be held that the order of the

First Appellate Authority in this case is a non speaking order.

In the light of the above, this writ petition is allowed.

Ext.P5 is quashed. Ext.P4 appeal filed by the petitioner will

stand restored to the files of the 2nd respondent who shall pass

fresh orders after affording an opportunity of hearing to the

petitioner.

Sd/-

GOPINATH P. JUDGE

ats 2024:KER:68018

APPENDIX OF WP(C) 39241/2023

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 21.3.2019 BEARING REFERENCE NO.34/2019/ST ISSUED BY THE 1ST RESPONDENT.

Exhibit P2 TRUE COPY OF REPLY DATED 6.5.2019 FILED BY THE PETITIONER.

Exhibit P3 TRUE COPY OF ORDER DATED 30.3.2021 ISSUED BY THE 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 20.4.2021.

Exhibit P5 TRUE COPY OF ORDER DATED 17.10.2023 PASSED BY THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF ORDER DATED 20.8.2020 FOR THE PERIOD 2014-15 TO 2015-16.

Exhibit P7 True copy guidline dated 11.3.2015.

RESPONDENTS' EXHIBITS

Exhibit-R1(a) True copy of CBEC instructions

-F.No.390/Misc/163/2010-JC dated 17-12-2015