Dismissed

The Commissioner of Central Excise Thane II Commissionerate , Mumbai v. M/S Neon Laboratories Ltd., Thane

Bombay HC10 Oct 2016CEXA/48/2008

Case brief

AI extract

What is this about?

The High Court dismissed Revenue appeals in Central Excise matters. The court noted that similar questions were resolved by a Tribunal larger bench and affirmed by the Supreme Court, making the appeals maintainable only via Supreme Court appeal which was not filed.

What did the court decide?

The appeals of the Revenue are dismissed.

The Commissioner of Central Excise Thane II… — GST and Indirect Tax | Bombay HC (2016)

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2-CEXA.76.2004+.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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CENTRAL EXCISE APPEAL NO. 76 OF 2004

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The Commissioner of Central } Excise } Appellant

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versus M/s. Mahindra and Mahindra} Ltd. } Respondent

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WITH CENTRAL EXCISE APPEAL NO. 39 OF 2006 The Commissioner of Central } Excise } Appellant versus M/s. Mahindra and Mahindra} Ltd. } Respondent

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WITH

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CENTRAL EXCISE APPEAL NO. 96 OF 2006

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The Commissioner of Central } Excise } Appellant versus M/s. Mahindra and Mahindra} Ltd. } Respondent

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WITH CENTRAL EXCISE APPEAL NO. 129 OF 2006

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The Commissioner of Central } Excise } Appellant versus M/s. Neon Laboratories Ltd. } Respondent

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WITH

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CENTRAL EXCISE APPEAL NO. 48 OF 2008

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The Commissioner of Central } Excise } Appellant versus M/s. Neon Laboratories Ltd. } Respondents

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Page 1 of 4

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J.V.Salunke,PA

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2-CEXA.76.2004+.doc

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Mr. Pradeep S. Jetly for the appellant in CEXA No. 129/2006.

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Mr. A. S. Rao for the appellant in CEXA/48/2008.

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Ms. P. S. Cardozo i/b. Mr. Vipul Bajpayee for the appellant in CEXA Nos. 76/2004, 39/2006 and 96/2006.

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Mr. Prakash Shah with Mr. Jas Sanghavi i/b. M/s. PDS Legal for the respondents in all appeals.

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CORAM :- S. C. DHARMADHIKARI & B. P. COLABAWALLA, JJ.

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DATED :- OCTOBER 10, 2016

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P.C. :-

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We have heard the learned counsel appearing for the

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parties. Each of these appeals were admitted on the substantial questions of law, which read as under:-

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“(a) Whether the CESTAT was justified in relying on the ratio of decision in the case of Vikran Ispat Holding that the said decision has not been contested by the Department which is contrary to the facts that the Department has already appealed against the said order?

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(b) Whether on the facts and circumstances of the case, the respondents are entitled to avail the MODVAT Credit on the input received from 100% EOU in spite of restrictions laid down in the first proviso to Notification No. 5 of 1994 CE (NT) dated 1^st March, 1994, which restricts credit to the extent of duty which is equal to the additional duty leviable on goods under section 3 of the Customs Tariff Act, 1975?”

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There is a subsequent development and which has been

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placed before us. In Central Excise Appeal Nos. 76/2004,

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Page 2 of 4

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J.V.Salunke,PA

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2-CEXA.76.2004+.doc

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39/2006 and 96/2006, it has been stated that similar questions, as were arising from the order of the tribunal came to be considered in the case of Vikram Ispat vs. Commissioner of Central Excise, Mumbai – III¹ by a larger bench of the tribunal. The larger bench assembling at Delhi has, in that decision, resolved the controversy and it is stated to be in favour of the assessee and against the Revenue. Thereafter, its order came to be challenged before this court by Central Excise Application No. 1 of 2006. A Division Bench of this court dismissed the appeal of the Revenue on the ground that it is not maintainable before this court. The Revenue ought to have filed an appeal before the Hon'ble Supreme Court of India, as the questions raised pertain to rate of duty or the value of goods for the purpose of assessment.

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Thereafter, the Revenue approached the Hon'ble Supreme Court of India, but in Civil Appeal No. 1546 of 2008 together with other appeals, this order of the High Court came to be affirmed by the Hon'ble Supreme Court of India on 20^th November, 2015. That order is also brought to our notice.

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We take a compilation of these orders on record and mark it as 'X' for identification, collectively.

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1 2000 (120) ELT 800

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Page 3 of 4

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J.V.Salunke,PA

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2-CEXA.76.2004+.doc

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In view of these orders passed, we do not think that the appeals of the Revenue, which even otherwise have a negligible revenue impact, should be entertained. They are accordingly dismissed.

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(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)

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Page 4 of 4

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J.V.Salunke,PA

The Commissioner of Central Excise Thane II Commissionerate , Mumbai v. M/S Neon Laboratories Ltd., Thane

Case brief

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The Commissioner of Central Excise Thane II Commissionerate , Mumbai v. M/S Neon Laboratories Ltd., Thane

Case brief

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What did the court decide?

What the court decided

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