Special Civil Application No. 16768 of 2016 with S.C.A. No. 16769 of 2016. Case: Five Star Agrico Pvt. Ltd. Vs Union of India. Gujarat High Court CEGAT & CESTAT Cases

Case NumberSpecial Civil Application No. 16768 of 2016 with S.C.A. No. 16769 of 2016
Party NameFive Star Agrico Pvt. Ltd. Vs Union of India
CounselFor Appellant: Shri Hardik P Modh, Advocate and For Respondents: Shri Devang Vyas, ASG
JudgesS.R. Brahmbhatt and A.Y. Kogje, JJ.
IssueConstitution of India - Article 226
Citation2017 (345) ELT 203 (Guj)
Judgement DateOctober 04, 2016
CourtGujarat High Court CEGAT & CESTAT Cases

Order:

A.Y. Kogje J.

  1. These petitions arise from the same factual background. Hence, with consent of the parties, are taken up for hearing together. The facts from SCA No. 16768 of 2016 are taken.

  2. This petition under Article 226 of the Constitution of India is filed praying inter alia for quashing and setting aside of the recovery notice issued pursuant to Order-in-Original dated 30-8-2013.

  3. The facts in brief are that the petitioner is a company engaged in manufacturing of various kinds of Hand Tools. The petitioner exports the final product outside India. Therefore, in terms of Rule 18 of Central Excise Rules, the petitioner claimed rebate of the central excise duty paid on input used in manufacturing of the goods exported. The waste scrape that is generated while manufacturing of such product, though sold in domestic market, is exempt from payment of duty.

    3.1 It is the case of the petitioner that the petitioner, till 2005 cleared the waste and scrap generated during the course of manufacture of final product on payment of central excise duty. However, after communication from the Excise authorities dated 17-6-2005, the petitioner had stopped paying the central excise duty on the clearance of the waste scrap generated during manufacturing of final product.

    3.2 When the rebate on duty paid on the input used in manufacturing of goods exported was claimed, the Department raised an objection that such rebate of central excise duty was not payable in view of violation of certain conditions prescribed under relevant notification. The Department could not agree to the submissions of the petitioner on the claim of rebate and hence raised demand show cause notice calling upon the petitioner to show cause as to why rebate sanctioned to the petitioner during the period from 21-5-2008 to 23-11-2012 be not recovered. The demand notice was confirmed by the Order-in-Original dated 30-8-2013 wherein the demand to the extent of rebate granted within the period from 17-5-2002 to 16-5-2013 was granted, but for the period beyond the period of limitation, rebate was granted and demand was dropped.

    3.3 An appeal came to be filed along with stay application challenging the order dated 30-8-2013. However, the said appeal also came to be rejected by Order-in-Appeal dated 28-1-2014.

    3.4 It is this Order-in-Appeal dated 28-1-2014 which came to be challenged by the petitioner by preferring revision application under Section 35EE of the Central Excise Act...

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