M/S Shree Umiya Cotton Ginning ... vs Commissioner
2023 Latest Caselaw 3464 MP

                                                               1
                             IN     THE      HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                    BEFORE
                             HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                       &
                                HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                               ON THE 27 th OF FEBRUARY, 2023
                                         VALUE ADDED TAX APPEAL No. 54 of 2022

                            BETWEEN:-
                            M/S SHREE UMIYA COTTON GINNING FACTORY
                            BARWAHA THROUGH PARTNER MAHENDRA PATIDAR
                            TIN 23702103656
                              R/O 174 MAHESHWAR ROAD BARWAHA DISTT.
                            KHARGONE (MADHYA PRADESH)

                                                                                            .....APPELLANT
                            (SHRI ADITYA GOYAL, LEARNED COUNSEL FOR THE APPELLANT.)

                            AND
                            COMMISSIONER,    COMMERCIAL              TAX,     INDORE
                            (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                            (SHRI AKASH SHARMA, LEARNED GOVT. ADVOCATE FOR THE
                            RESPONDENT/STATE.)

                                  This appeal coming on for admission this day, JUSTICE SUSHRUT

                            ARVIND DHARMADHIKARI passed the following:
                                                                ORDER

Heard on the question of admission as well as interim relief. T he appellant has preferred the instant appeal being aggrieved by the order dated 08.09.2022, passed by the MP Commercial Tax Appellate Board. Bench at Indore relying upon the MP VAT Validation Act, 2017.

Learned counsel for the appellant submitted that the Appellate Board did not consider the fact that though this High Court has upheld the constitutional Signature Not Verified Signed by: SHAILESH PATIL Signing time: 2/28/2023 10:46:45 AM

validity of the VAT Validation Act,2017 but thereafter, Diary No. 41769/2018/Civil Appeal No. 4975/2022, is pending before the Apex Court in which notices have been issued and leave has been granted, in view whereof, the Appellate Board ought to have kept the appeal pending till the final outcome of the Apex Court.

In this regard, learned counsel for the appellant has placed reliance on the judgment of the Apex Court in the case of Coommissioner of Customs, Mundra Vs. Cargill India Private Limite (2019) 18 SCC 159 in which the Apex Court has held as under:-

" 1. The issue of classification is raised in this appeal. The Customs, Excise and Service Tax Appellate Tribunal ( CESTAT) i n the impugned order had noted that the said issue of classification is pending in this Court in other appeals. On that basis the CESTAT has disposed of the appeal. Liberty is also given to approach the CESTAT after the verdict of this Court in the appeals pending here. In that view of the matter the CESTAT should not have disposed of the appeal and should have kept the appeal pending till the issue is decided by this Court.

2. In view thereof the order of the CESTAT disposing of the appeal is set aside and it is clarified that the appeal would remain pending before the CESTAT till the issue is decided by this Court whereafter the parties can approach the CESTAT.

The appeal is disposed of accordingly."

On the other hand, learned counsel for the State has opposed the prayer and submitted that though the leave has been granted by the Apex Court still there is no interim relief in the matter therefore, the Appellate Board has rightly passed the order. Hence, this present appeal deserves to be dismissed.

In reply to the aforesaid, learned counsel for the appellant has placed reliance in the case of Union of India Vs. West Coast Paper Mills Limited AIR (2004) SC 1596 in para No. 42 wherein the Apex Court has held as under:-

Signature Not Verified Signed by: SHAILESH PATIL Signing time: 2/28/2023 10:46:45 AM

"42. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit."

In view of the aforesaid pronunciations of the Apex Court, the impugned order dated 08.09.2022 cannot be allowed to stand, accordingly, the same is set aside. The appeal shall remain pending before the Appellate Board, Bench at Indore, till the issue is decided by the Apex Court.

Accordingly, the appeal stands allowed.

                               (S. A. DHARMADHIKARI)                          (PRAKASH CHANDRA GUPTA)
                                        JUDGE                                          JUDGE
                            patil




Signature Not Verified
Signed by: SHAILESH PATIL
Signing time: 2/28/2023
10:46:45 AM