2010 (6) TMI 171 - HC - Central Excise

Judicial Discipline- Supreme Court in BIRLA CORPORATION LTD. Versus COMMR. OF C. EX. RAIPUR 2005 (7) TMI 104 - SUPREME COURT OF INDIA held that revenue cannot be allowed to take different view when question raised identical to previous case. High Court in present case cannot take different view from the Union of India v. Slovak India Trading Co. Pvt. Ltd. 2006 -TMI - 606 - HIGH COURT OF KARNATAKA (BANGALORE) as approved by the Supreme Court. Appeal dismissed.

Summary

Summary:The Bombay High Court, relying on the Karnataka High Court's ruling in Union of India v. Slovak India Trading Co. Pvt. Ltd., held that Rule 5 does not expressly prohibit refund claims where there is no manufacture due to factory closure. The Tribunal was justified in ordering a refund, especially given the closure and the assessee's exit from the Modvat Scheme. The Apex Court dismissed the Special Leave Petition (SLP) against this judgment on its merits, clarifying that the dismissal was not due to any concession on the correctness of the Karnataka High Court's decision but because the Revenue had not appealed prior relevant judgments. Citing Birla Corporation Ltd. v. Commissioner of Central Excise, the Court emphasized that the Revenue cannot adopt a contrary view on facts identical to previous cases upheld by the Apex Court. Consequently, the appeal was dismissed in limine with no order as to costs.