COMMISSIONER Vs. KICH INDUSTRIES
LAWS(GJH)-2013-10-119
HIGH COURT OF GUJARAT
Decided on October 17,2013

COMMISSIONER Appellant
VERSUS
Kich Industries and 5 Ors. Respondents


Cited Judgements :-

COMMR. OF C. EX. & S.T. VS. PRAVINBHAI NARSHIBHAI PATEL [LAWS(GJH)-2016-12-81] [REFERRED TO]


JUDGEMENT

M.R. Shah, J. - (1.)ALL these Tax Appeals have been preferred by the common appellant -Commissioner, Central Excise and Customs challenging the impugned common judgment and order dated 22/11/2012 passed by the Central Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') in Appeal No. E/267 to 272/2012 with the following proposed substantial questions of law;
(a) Whether in the facts and circumstances of the case, the tribunal has committed substantial error of law in holding that the respondent No. 1 cannot be treated as manufacturer and the clearance of other units to be clubbed and the respondent No. 1 is not liable to pay duty on all the goods manufactured by all the concerned units, even though there exists sufficient material and evidences on record to establish that the respondent No. 1 was the unit having required infrastructure for manufacturing the goods and all other firms/companies/proprietary concerns were created for the sake of showing them independent manufacturing unit?

(b) Whether in the facts and circumstances of the case, the tribunal has committed substantial error of law in ignoring settled principle of lifting the corporate veil to ascertain duty liability of the respondent No. 1 on the face of evidence on record establishing all ingredients i.e. mutuality of interest financial flowback, control of one unit over other and commonality of infrastructure indicating ulterior motive of the respondents herein to evade payment of duty by adopting device of setting separate unit, which are controlled by one family members?

(c) Whether in the facts and circumstances of the case and in view of the material and evidences available before the tribunal, the tribunal has committed substantial error of law in setting aside order of the adjudicating Commissioner demanding Central Excise duty from the respondent No. 1 under Section 11A(1) and imposing penalty on the respondent No. 1 under Section 11AC of the Central Excise Act, 1944?

(d) Whether in the facts and circumstances of the case, the tribunal has committed substantial error of law in setting aside personal penalty imposed on the respondent Nos. 2 to 6 under Rule 26 of the Central Excise Rules, 2002 even though it is proved on record that the said respondents have by their act of omission and/or commission made themselves liable for penal action under the aforesaid Rule?

Having noted the proposed substantial questions of law and the issue involved, we called upon the learned Counsel appearing on behalf of the appellant to satisfy how the present Tax Appeals before this Court would be maintainable. To the aforesaid, the learned Counsel appearing on behalf of the appellant is not in a position to dispute that the identical questions came to be considered by the Division Bench of this Court in Tax Appeal No. 973/2011, more particularly, with respect to maintainability of the appeal before this Court involving the similar issues raised in the present Tax Appeals and the Division Bench has dismissed the appeal as not maintainable, as for the issues involved in the Tax Appeals, appeal before Hon'ble the Supreme Court under Section 35L of the Central Excise Act would be maintainable.

(2.)HAVING heard Shri R.J. Oza, learned Counsel appearing on behalf of the appellant and the proposed substantial questions of law referred to hereinabove and the controversy and the issues involved in the present Tax Appeals, we are of the view that the present Tax Appeals before this Court filed under Section 35G of the Central Excise Act would not be maintainable and the questions involved can only be decided by Hon'ble the Supreme Court under Section 35L of the Central Excise Act, 1944.
We are fortified by the aforesaid view of the decision of the Division Bench of this Court dated 03/07/2012 passed in Tax Appeal No. 973/2011 involving the similar issues holding that the Tax Appeal would not be maintainable under Section 35G of the Central Excise Act, 1944.

(3.)IDENTICAL question also came to be considered by the Punjab and Haryana High Court in the case of Commissioner of Central Excise, Panchkula Vs. Special Machine reported in, 2009 (242) EIT 330 where the Punjab and Haryana High Court held that the dispute as to whether the assessee was covered by the exemption notification, was related directly and proximately to rate of duty applicable and, therefore, the appeal on question of law before the High Court would not be maintainable and an appeal under Section 35L of the Central Excise Act, 1944 would be maintainable before Hon'ble the Supreme Court. As a sequel to the above discussion, we are of the view that the present Tax Appeals are not maintainable and the only remedy available to the revenue is to file appeal before Hon'ble the Supreme Court under Section 35L of the Central Excise Act, 1944. Hence, Registry is directed to return all the Tax Appeals to the appellant to present it before the competent Court having jurisdiction. Accordingly, all the Tax Appeals stand disposed of so far as this Court is concerned.


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