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2023 (2) TMI 548 - GUJARAT HIGH COURTRefund of Krishi Kalyan Cess (KKC) levied under the Finance Act, 2016 - essential grievance on the part of the petitioner is of the Tribunal not deciding the matter itself and remanding it to the Assessing Officer with the further grievance that the pending matter before the Apex Court being a case of M/S. GAURI PLASTICULTURE P. LTD., BOMBAY DYEING & MANUFACTURING CO. LTD., M/S. SIMPLEX MILLS CO. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, INDORE, THE COMMISSIONER OF CENTRAL EXCISE, MUMBAI IV, THE UNION OF INDIA THROUGH THE COMMISSIONER OF CENTRAL EXCISE MUMBAI I [2019 (6) TMI 820 - BOMBAY HIGH COURT] has no applicability. HELD THAT:- The chief reason for remanding the matter for adjudicating it de novo by the adjudicating authority is the pendency of the matter in case of M/s. M/s.Bombay Dyeing and Manufacturing Company Limited before the Apex Court. It is a Larger Bench’s judgment of the Bombay High Court challenged before the Apex Court. It is given to understand that the same is still pending before the Apex Court and has not been finally decided. If the matter is still pending before the Apex Court, nobody can make a guess as to in what way it is going to result. The least the Tribunal could have done was of deciding the matter on merit as per the prevalent law or to keep the matter back. However, it has chosen to remand the matter to the adjudicating authority which is impermissible. This Court in case of COMMISSION OF CENTRAL GST VERSUS JAY CHEMICAL INDUSTRIES LTD. [2018 (8) TMI 1392 - GUJARAT HIGH COURT] the question which was pending before the Tribunal was at large before the High Court. The Court held that in such a situation, the appeal ought to have been kept pending till the decision of the High Court with a liberty to both the sides to approach the Tribunal after the decision of the High Court. The approach of the Tribunal is held to have harassed both the Assessee and the Department, the matter was remanded with a direction to keep it pending and decide after the decision of the High Court in Tax Appeal pending before it on the same issue. In the instant case also, it is noticed that the approach of the Tribunal is to abdicate its duty of deciding the matter on the merits or to retain the matter till the outcome of the pending matter before the Apex Court. Since this is not permissible, it is deemed appropriate that the Tribunal, which is otherwise required to decide the matter on merit, shall decide the same keeping all contentions raised by both the sides before this Court and before the Tribunal open for them to agitate, let the same be decided without further loss of time. Petition disposed off.
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