The Madras High Court dismissed a batch of Commissioner of Central Excise appeals arguing that it was futile due to litigation policy and refund implications under GST, leaving the matter to await Supreme Court outcomes on Rule 8(3A) validity.
The appeals were closed/dismissed with liberty to the appellant to revive them if necessary.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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C.M.A.No.1646/2016 Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 21-11-2022
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.M.A.Nos.1646 of 2016, 1261,1262 & 1264 of 2018
C.M.A.No.1646/2016 :
Commissioner of Central Excise III, 121, Nungambakkam High Road, Chennai-600 034.
... Appellant
-vs-
M/s.A.R.Metallurgicals Pvt. Ltd. ... Respondent
C.M.A.No.1261/2018 :
The Commissioner of Central Excise, O/o. The Commissioner of Central Excise, Customs & Service Tax, 6/7, A.T.D. Street, Race Course Road, Coimbatore – 641 018. ... Appellant
-vs-
1.M/s.Fisher Pumps Pvt. Ltd.
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C.M.A.No.1646/2016 Batch
2.The Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Shastri Bhavan Annexe, I Floor, 26, Haddows Road, Chennai – 600 006. ... Respondents C.M.A.No.1262/2018 : The Commissioner of Central Excise, O/o. The Commissioner of Central Excise, Customs & Service Tax, 6/7, A.T.D. Street, Race Course Road, Coimbatore – 641 018. ... Appellant -vs1.M/s.Fisher Pumps Pvt. Ltd. 2.The Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Shastri Bhavan Annexe, I Floor, 26, Haddows Road, Chennai – 600 006. ... Respondents C.M.A.No.1264/2018 : The Commissioner of Central Excise, O/o. The Commissioner of Central Excise, Customs & Service Tax, 6/7, A.T.D. Street, Race Course Road, Coimbatore – 641 018. ... Appellant -vs1.M/s.Aaruran Alloys
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C.M.A.No.1646/2016 Batch
2.The Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Shastri Bhavan Annexe, I Floor, 26, Haddows Road, Chennai – 600 006. ... Respondents
C.M.A.No.1646 of 2016 is filed under Section 35G of the Central Excise Act,1944, against the Final Order No.40063 of 2015, dated 19.01.2016, passed by the Custom, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
C.M.A.No.1261 of 2018 is filed under Section 35G of the Central Excise Act,1944, against the Final Order No.40868 of 2015, dated 08.07.2015, passed by the Custom, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
C.M.A.No.1262 of 2018 is filed under Section 35G of the Central Excise Act,1944, against the Final Order No.40869 of 2015, dated 08.07.2015, passed by the Custom, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
C.M.A.No.1264 of 2018 is filed under Section 35G of the Central Excise Act,1944, against the Final Order No.40873 of 2015, dated 08.07.2015, passed by the Custom, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
For Appellant in all Appeals : Mr.A.P.Srinivas, Senior Central Government Standing Counsel.
For Respondent in C.M.A.No.1646/2016 : Mr.A.K.Jayaraj
For Respondent 1 in C.M.A.Nos.1261 & 1262 /2018 : Mr.J.Shankar
Raman
For Respondent 1 in C.M.A.No.1264/2018 : Mr.Karthikeyan,
for M/s.Swamy Associates.
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C.M.A.No.1646/2016 Batch
Respondent 2 : Tribunal
JUDGMENT
A batch of cases came to be disposed of on an earlier occasion on 04.11.2022 vide C.M.A.No.424 of 2017, wherein we had closed the appeals by preserving the liberty of the appellant, namely, the Commissioner of Central Excise, to revive the appeals, subject to the outcome of the appeals, that are pending before the Hon'ble Supreme Court.
submits that he has no instructions from the respondent. He further submits that possibly the respondent has closed down the business and that it is a futile exercise, inasmuch as these appeals are liable to be dismissed due to the litigation policy of the Government on account of low tax effect. That apart, it is submitted that even if any adverse orders are passed, eventually, the amount will have to be refunded under the new regime under the Central Goods and Services Tax Act,2017.
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C.M.A.No.1646/2016 Batch
''These appeals are taken up for final disposal and are disposed of in the light of the decision of Gujarat High Court in Indsur Global Ltd. V. Union of India 2014 (310) ELT 833 (Guj.) and subsequent development. The Gujarat High Court had held that Rule 8(3A) of the Central Excise Rules, 2002 was ultra vires the Act. This decision was followed by this Court in the case of A.R. Metallurgicals P. Ltd V. CESTAT 2015 (322) ELT 49 (Mad.). However, decision of Gujarat High Court in Indsur Global Ltd. V. Union of India 2014 (310) ELT 833 (Guj.) has been stayed by the Hon'ble Apex Court as reported in 2016 (335) ELT A109 (SC) . The relevant portion of the order of the Hon'ble Apex Court reads as hereunder:
"There shall be interim stay of the impugned judgment and order passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No. 3344 of 2014 dated 27.11.2014. We restrain the petitioner(s) herein to recover a sum of Rs.87,00,000/- (Rupees eight seven lakhs only) from the respondent till the disposal of the Special Leave Petition (C) C.C. No. 16523 of 2015."
2. Considering the above, we are inclined to set aside the impugned order and remit the cases back to the original authority concerned to await for the final orders of the Hon'ble Supreme Court in Special Leave Petition (C) C.C. No. 16523 of 2015 [ Union of India V.Indsur Global Ltd.] .
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3. In case, in C.M.A. No. 424 of 2017, the issues governed by the litigation policy of the Government, respondent is directed not to press for any payment.
4. The civil miscellaneous appeals and the writ appeal are disposed of accordingly. No costs. Connected C.M.Ps. are closed.''
appellant, as ordered in the above cases. No costs.
(C.S.N.,J.)
(S.V.N.,J.) 21-11-2022
dixit
To
The Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Shastri Bhavan Annexe, I Floor, 26, Haddows Road, Chennai – 600 006.
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C.M.A.No.1646/2016 Batch
S.VAIDYANATHAN,J. AND C.SARAVANAN,J.
dixit
C.M.A.Nos.1646/2016,1261,1262 & 1264/2018
21-11-2022
Colour shows how this judgement treated each authority
Indsur Global Ltd. V. Union of IndiaReferred¶50
Indsur Global Ltd. V. Union of India 2014 (310) ELT 833 (Guj.)
A.R. Metallurgicals P. Ltd V. CESTATReferred¶50
A.R. Metallurgicals P. Ltd V. CESTAT 2015 (322) ELT 49 (Mad.)
Union of India V.Indsur Global Ltd.Referred¶52
Union of India V.Indsur Global Ltd. 2016 (335) ELT A109 (SC)
1 provisions across 1 enactments
Commissioner of Central Excise III
M/s. A.R. Metallurgicals Pvt. Ltd.
The Commissioner of Central Excise
M/s. Fisher Pumps Pvt. Ltd.
Customs, Excise and Service Tax Appellate Tribunal
M/s. Aaruran Alloys
Vaidyanathan
Saravanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
