Commission of Central GST Versus Jay Chemical Industries Ltd.
Central Excise
2018 (8) TMI 1392 – GUJARAT HIGH COURT – 2018 (19) G. S. T. L. 459 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 9-7-2018
R/TAX APPEAL NO. 767 to 770 of 2018 and 814 of 2018, 815 of 2018
Central Excise
MR. M.R. SHAH AND MR. A.Y. KOGJE JJ.
Appearance: –
Tax Appeal Nos.767 of 2018 to 770 of 2018
MR NIRZAR S DESAI(2117) for the APPELLANT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1
Appearance: – Tax Appeal Nos.814 of 2018 to 815 of 2018
MR NIRZAR S DESAI(2117) for the APPELLANT(s) No. 1
MR DHAVAL SHAH for the RESPONDENT(s) No. 1
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. As common question of fact and law arises in this group of appeals, all these appeals are decided and disposed of together by this common judgment and order.
2. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Customs, Excise and Service Ta
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[b] Whether the CESTAT is right in law passing an order for no recovery or any refund of Cenvat Credit of Service Tax paid on Sales Commission during the period?”
2. Shri Nirzar Desai, learned Advocate has appeared on behalf of the Revenue in each of the appeals and Shri Dhaval Shah, learned Advocate, has appeared on behalf of the respondent-assessee in Tax Appeal Nos.814 of 2018 and 815 of 2018. Though served, nobody appears on behalf of the respective respondent-assessees in remaining appeals.
3. Shri Desai, learned Advocate appearing on behalf of the Department has vehemently submitted that as such, the issue involved in the appeals before the learned Tribunal on merits has been concluded in favour of the Revenue in view of the decisions of this Court in the case of Commissioner of C.Ex. Ahmedabad-II Vs. Cadila Healthcare Ltd., reported in 2013 (30) STR, 3 and in the case of Astik Dyestuff Pvt. Ltd. Vs. Commissioner of Central Excise and Customs, reported in 2014 (34) STR, 814.
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in the case of Cadila Healthcare Ltd. (supra) and Astik Dyestuff Pvt. Ltd. (supra), shall not be applicable and that the assessee shall be entitled to the Cenvat credit on the service tax paid on sales commission. It is submitted that therefore the learned Tribunal has rightly not decided the appeals on merits, pending decision of this Court in the case of Essar Steel India Ltd., being Tax Appeal No.444 of 2016. However, it is fairly conceded and admitted that instead of disposing of the appeals, the learned Tribunal could have and ought to have kept the appeals pending rather than passing such an order disposing of the appeals and reserving liberty to both the sides to approach the Tribunal soon after the verdict of this Court in the pending appeal in the case of Essar Steel India Ltd., being Tax Appeal No.444 of 2016.
5. Having heard learned Advocates appearing on behalf of the respective parties and considering the impugned common order passed by the learned Tribunal, we, as such d
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with liberty to both sides to approach the Tribunal after decision of this Court in the pending appeal in the case of Essar Steel India Ltd., being Tax Appeal No.444 of 2016. Such an order would not help either the Revenue /Department and even the assessee. Such a procedure adopted by the learned Tribunal would cause harassment to the assessee as well as inconvenience to the Department. Therefore, we are of the opinion that the procedure adopted by the learned Tribunal disposing of the appeals without deciding the same on merits with liberty approach the Tribunal after decision of this Court in the pending appeal is neither correct not proper and the same deserves to be quashed and set aside.
6. As recorded hereinabove, even learned Advocate appearing on behalf of the assessee in Tax Appeal Nos.814 and 815 of 2018 has also stated and submitted that the learned Tribunal ought to have kept appeals pending rather than disposing the appeals with above liberty.
7. In view of the above an
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