COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE VADODARA – II Versus M/s MEGHMANI FINCHEM LTD.
Central Excise
2018 (8) TMI 1451 – GUJARAT HIGH COURT – TMI
GUJARAT HIGH COURT – HC
Dated:- 23-8-2018
R/TAX APPEAL NO. 1043 of 2018
Central Excise
MR. AKIL KURESHI AND MR. B.N. KARIA, JJ.
For The Petitioner : Mr Nirzar S Desai (2117)
For The Respondent : Mr Paresh M Dave(260)
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This Tax Appeal is filed by the department challenging the order of Customs, Excise and Service Tax Appellate Tribunal dated 31.07.2017. The issue arises in somewhat peculiar background. We may briefly record the facts:
2. The principal issue between the department and the respondent-manufacturer is with respect to the assessee's claim of Cenvat credit of service tax paid on sales commission. Such an issue was decided by Division Bench of this Court in case of Commissioner of Central Excise, Ahmedabad vs. Cadila Healthcare Ltd reporte
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the Tribunal on this very issue. The department obviously placed heavy reliance on the judgements of High Court in cases of Commissioner of Central Excise, Ahmedabad vs. Cadila Healthcare and Astik Dyestuff Pvt. Ltd vs. Commissioner of Central Excise and Customs. The assessees relied on the amendment to the definition of term “input service” and argued that the same would apply to all pending cases irrespective of the date of amendment.
4. In view of such facts, the options before the Tribunal were either to await the outcome of the department's appeal in case of Essar Steel India Ltd (supra) if the decision in such appeal was likely to be rendered in near foreseeable future which would in addition to reducing the effort of both sides would also in many cases eliminate one stage of litigation. However, if the Tribunal was of the opinion that the judgement of the High Court may not be available in near future or for any such other good reason, it would not possible or advisable to
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en to reopening of all the issues. This would lead to multiplicity of proceedings. The parties, i.e. the department or the assessee, as the case may be, would have to file fresh proceedings once the High Court disposes of the appeal in case of Essar Steel India Ltd. In the mechanism provided, the Tribunal has also left many gaps. For example, there is no clarity as to what time limit within which the parties would have to file fresh proceedings. The Tribunal merely stated that soon after the verdict either side can approach. This term “soon after the verdict” is not possible of any clear application. Further, we wonder what would happen if no appeal is filed as per the liberty granted by the Tribunal. Whether the decision against the losing party would achieve finality; in which case what would happen to the tax or the refund is not clear. At which point of time such finality would be presumed is not specified. All in all, this is the most unsatisfactory manner in which, such large num
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