(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr. R.J. Oza, learned Senior Standing Counsel appearing for the Central Excise & Customs Department – appellant herein and Mr. Paresh Sheth, learned counsel appearing for the respondent – assessee.
2. This appeal has been filed proposing the following question of law, which is seriously pressed by learned Senior Counsel appearing for the appellant :-
“Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law by ignoring the High Court's decision in case of Elson Packaging Industries Pvt. Ltd. ?”
3. Learned counsel Mr. Paresh V. Sheth appearing for the respondent states that instead of admitting the appeal, the appeal may be disposed of at the admission stage itself. With the consent of learned counsel for the parties, we have taken up this appeal for final disposal on the aforesaid question.
4. Learned Senior Standing Counsel Mr. R.J. Oza appearing for the revenue has vehemently urged that in the earlier round of litigation between the same parties, the revenue had challenged the order dated 4.6.2007 before this Court by filing Tax Appeal No.1686 of 2007. By the said order, the Tribunal allowed the appeal of the assessee with reduced penalty of Rs.40,000/-. This Court vide order dated 18.2.2009 passed in Tax Appeal No.1686 of 2007 quashed the said order of the Tribunal and remanded the matter to the Tribunal for reconsideration after considering the decision of the CESTAT, Mumbai in case of M/s. Elson Packaging Industries Pvt. Ltd. v. CCE, Surat, 2004 (169) ELT 171.
5. Learned Senior Counsel appearing for the revenue further pointed out that the order passed by CESTAT, Mumbai in case of M/s. Elson Packaging Industries Pvt. Ltd. has also been confirmed by Division Bench of this Court and the decision is reported in 2010 (257) ELT 509 (Guj.) (Tax Appeal No.91 of 2005 decided on 9.5.2005). He, therefore, submitted that though the Tribunal was directed to consider the said judgment, the Tribunal again without considering the said judgment in the case of M/s. Elson Packaging Industries Pvt. Ltd. passed an order on 28.8.2009 and allowed the appeal of the assessee. He, therefore, urged that the impugned order is, therefore, required to be quashed and set aside.
6. Having heard learned counsel for the parties, we are of the considered opinion that once this Court has directed the Tribunal to consider the decision in the case of M/s. Elson Packaging Industries Pvt. Ltd. and the Tribunal records this fact in paragraph 1 of its judgment, but again fails to consider the said judgment, therefore, the impugned order of the Tribunal cannot be maintained. Under the circumstances, the impugned order of the Tribunal is set aside. The appeal is allowed. The question is answered in the affirmative i.e. in favour of the revenue and against the assessee. The matter is remanded to the Tribunal for reconsideration in accordance with law with a direction to consider the decision in case of M/s. Elson Packaging Industries Pvt. Ltd.
7. However, we make it clear that before the Tribunal, the revenue as well as the assessee shall be free to raise any objection or contention which may deem fit in accordance with law.
Sd/-
[V. M. SAHAI, J.] Savariya Sd/-
[N. V. ANJARIA, J.]