TAXAP/161/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No.161 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- HON'BLE SMT.JUSTICE ABHILASHA KUMARI Sd/- =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO =================================================== THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS - Appellant(s) Versus M/s. THAKKAR TOBACCO PRODUCTS PVT. LTD.-Opponent(s) =================================================== Appearance : MR HARIN P RAVAL for Appellant(s) : 1, NOTICE SERVED BY DS for Opponent(s) : 1, =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 27/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) TAXAP/161/2008 2/4 JUDGMENT (1) The appellant-revenue has proposed the following two questions: “[A] Whether the Tribunal, in the facts and circumstances of the present case, is justified in dismissing/rejecting the appeal of the Revenue only on the ground that the appeal was filed by the Commissioner himself and not by officer subordinate to him on the basis of the authorization without considering the appeal on merits? [B] Whether in the facts and circumstances of the case is the Tribunal justified in relying upon the decision rendered in M/s. Ganesh Dying Works to uphold the preliminary contention about maintainability of the appeal filed by the Commissioner on the ground that the appeal being filed by the Commissioner himself, the same is not correct as Section 35-B[2] of the said Act mandates the Commissioner to direct any Central Excise Officer authorized by him in this behalf to appeal on his behalf to the appellate Tribunal?” (2) On 08.10.2008 notice for final disposal was issued. Though the Board shows endorsement DS Affidavit not filed in fact the record reveals TAXAP/161/2008 3/4 JUDGMENT that the respondent has been served on 19.11.2008. Hence, the appeal is taken up for final hearing and disposal considering the fact that the issue now stands concluded by a judgment of this Court. ADMIT. Following substantial question of law arises for consideration: “Whether on the facts and in the circumstances of the case, Customs Excise and Service Tax Appellate Tribunal is justified in law in dismissing the appeal as being not maintainable?” (3) It is not necessary to set out the facts and contentions in detail. As can be seen from the impugned order of the Tribunal dated 03.01.2007 the Tribunal has not assigned any independent reason and merely followed its own order in case of Ganesh Dying Works. Against the said order the revenue had come up in Tax Appeal No.276 of 2007 which has been finally decided by a judgment rendered on 13.11.2008. (4) Hence, for the reasons recorded in judgment TAXAP/161/2008 4/4 JUDGMENT dated 13.11.2008 rendered in Tax Appeal No.276 of 2007 in the case of Commissioner of Central Excise and Customs, Surat-I Vs. M/s. Shree Ganesh Dying & Prining Works, the question is answered in the negative i.e. in favour of the revenue and against the assessee. The appeal before the Tribunal shall now stand restored to the file of the Tribunal for being decided in accordance with law after applying law as laid down by this Court in the case of Commissioner of Central Excise and Customs, Surat-I Vs. M/s. Shree Ganesh Dying & Printing Works. The appeal is allowed accordingly in the aforesaid terms. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] Sd/- [SMT. ABHILASHA KUMARI,J] *** B h a v e s h *