Gujarat Narmada Valley Fertilizers Co. Ltd. vs Commissioner of Central Excise and Customs

M.R. Shah, J.—Feeling aggrieved and dissatisfied with the judgment and order dated 14/5/2013 passed by the learned Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the CESTAT") bearing No. A/10672-10673/WZB/AHD/2013, appellant herein has preferred the present Tax Appeal with the following proposed substantial questions of law:--

(4.1) That can CESTAT saddle the Appellant with duty liability by following the judgment of a Division Bench of the Hon''ble Supreme Court which judgment has been referred to the Larger Bench?

(4.2) That when only issue involved in the case has been referred to a Larger Bench by the Hon''ble Supreme Court of India, is not the filling of a Tax Appeal against the order of CESTAT the only recourse left to an Appellant?

(4.3) That was it proper for CESTAT to pass an order on an issue which has been referred to a Larger Bench of the Hon''ble Supreme Court even when the same was orally pointed out at the time of hearing?

(4.4) Would not the passing of impugned order when the "Lis" is pending resolution by Hon''ble Supreme Court''s Larger Bench lead to multiplicity of proceedings?

Mr. Uday Joshi, learned advocate appearing on behalf of the appellant has made only one submission that two judgments relied upon by the CESTAT i.e. decisions of the Hon''ble Supreme Court in the case of Commnr. of Central Excise Vs. Gujarat Narmada Fertilizers Co. Ltd., and in the case of Maruti Suzuki Ltd. Vs. Commissioner of Central Excise, Delhi-III, are referred to Larger Bench by another Division Bench of the Hon''ble Supreme Court in the case of Ramala Sahkari Chini Mills Ltd., U.P. Vs. Commissioner Central Excise, Meerut-I, and in the case of CCE v. Gujarat Narmada Valley Fertilizers Co. Ltd. [2012] 38 STT 55/28 taxmann.com 264 (SC) and therefore, the learned CESTAT ought not to have relied upon the aforesaid two decisions and ought not to have disposed of the appeal and ought to have kept the appeal pending till the reference to the Larger Bench is decided and concluded by the Hon''ble Supreme Court. No other submissions have been made.

At the outset, it is required to be noted that as such the decision of the Hon''ble Supreme Court in the case of Gujarat Narmada Fertilizers Co. Ltd. (supra) and the decision of the Hon''ble Supreme Court in the case of Maruti Suzuki Ltd. (supra) still hold the field and therefore, the aforesaid two decisions are binding to the Department and even this Court unless and until the same are overruled by the Larger Bench of the Hon''ble Supreme Court. Under the circumstances, as such no error has been committed by the learned CESTAT in relying upon the aforesaid two decisions and holding against the assessee. In the aforesaid two decisions the Hon''ble Supreme Court has specifically held that the inputs used as fuel are not eligible for CENVAT credit as per rule 6(1) of the CENVAT Credit Rules, 2002. Under the circumstances, no error has been committed by the CESTAT in holding in favour of the revenue and against the assessee.

2.1 Now so far as the submission on behalf of the appellant that as the aforesaid judgment which have been relied upon by the CESTAT in the case of Gujarat Narmada Fertilizers Co. Ltd. (supra) and Maruti Suzuki Ltd. (supra) are referred to Larger Bench and therefore, the CESTAT ought to have kept the appeal pending is concerned, the same cannot be accepted.

2.2 In the case of State of Rajasthan Vs. R.S. Sharma and Co., a question arose, whether question pending decision of Larger Bench of Supreme Court, meanwhile particular case to be decided on the basis of present position of law or not. In the case before the Hon''ble Supreme Court the question whether on the ground of absence of reasons Award under Arbitration Act was bad per-se, was pending consideration by Constitution Bench of the Hon''ble Supreme Court and therefore, it was averred that courts should wait adjudication on the aforesaid point by the Constitution Bench. The Hon''ble Supreme Court did not accept the said contention and opined that pendency of the aforesaid question would not postpone all the decisions by the Court. The Hon''ble Supreme Court observed that one of the cardinal principles of administration of justice is to ensure quick disposal of the disputes in accordance with law, justice and equity. The Hon''ble Supreme Court further observed that the justice between the parties in a particular case should not be in a suspended animation.

2.3 Similar view has been expressed by the Hon''ble Supreme Court in the case of Manager, National Insurance Company Ltd. Vs. Saju P. Paul and Another,

In view of the above, no question of law much less any substantial question of law arises. Hence, present appeal deserves to be dismissed and is accordingly dismissed.