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M/s Sopariwala Exports Pvt Ltd Versus Commissioner of Central Excise, Customs (Adjudication) -Vadodara

2016 (10) TMI 282 - CESTAT AHMEDABAD

Refund claim - C&F charges - goods exported earlier at which time there was no eligibility for refund, and refund application was submitted on a subsequent date by which time refund became eligible - Held that:- it is found that the issue in contention here has been examined in detail by the Tribunal in the appellant s own case [2013 (9) TMI 144 - CESTAT AHMEDABAD], and in the case of East India Minerals Ltd vs. Commissioner of Central Excise, Customs & Service Tax, Bhubaneswar [2012 (8) TMI 22 .....

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d. - We find that the issue is settled in favour of the appellants by the above decisions, especially by the decision in their own case. The Hon’ble jurisdictional High Court of Gujarat in the case of Mundra Port & Special Economic Zone Ltd. [2010 (5) TMI 483 - GUJARAT HIGH COURT] has laid down the principle that the earlier decision by the Tribunal in their own case, on the same issue which has reached finality would be binding. At this juncture, the appellants fairly submits that in relat .....

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Representative ORDER Per Mr. P. M. Saleem Heard both sides and perused the records. 2. The issue involved herein is regarding eligibility of refund pertaining to goods which were exported earlier at which time there was no eligibility for refund, and refund application was submitted on a subsequent date by which time refund became eligible, on the ground that on the date of filing the refund claim they were eligible for the refund. 3. At the outset itself, the Ld. Counsel for the appellants subm .....

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at the date of export is not relevant. It was also submitted that the Commissioner (A) had allowed the refund in a similar case earlier, but in the impugned order that decision was not followed on the ground that appeal has been filed before the Tribunal. Since the issue is squarely covered by the decision of the Tribunal as cited by the ld. Counsel, I find that I am bound to follow the decision and accordingly it has to be held that appellant is eligible for the refund. 4. The Ld. Counsel submi .....

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er (Appeals), vide Order-in-Appeal No. 346/2007/Commr(A)/RAJ dated 30-11-2007 has allowed the credit of service tax paid on mobile phones, rent-a-cab, CHA and surveyor charges and professionals and that the said order has not been challenged by revenue and as such has attained finality. The Tribunal has, accordingly, held that credit in respect of service tax paid on the aforesaid was available to the respondent. Since, the controversy as regards admissibility of CENVAT credit in relation to mob .....

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92) 193 ITR 321 (S.C.) (though in the context of the Income-tax Act), that strictly speaking, res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and the parties have allowed that position to be sustained by not challenging the order, it would not be at all approp .....

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question could not have been reopened and a different and contradictory stand could not have been taken. In the circumstances, no infirmity can be found in the impugned order of the Tribunal in relation to admissibility of CENVAT credit in relation to mobile phones, rent-a-cab, CHA and surveyor charges and professionals. 6. Insofar as the demand relates to the credit of duty on air-conditioners, the Tribunal upon appreciation of the evidence on record has found as a matter of fact that the asse .....

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C. K. Gangadharan (supra) is concerned, there can be no dispute as regards the general proposition of law enunciated by the Apex Court. However, the Apex Court has not laid down that in case of the same assessee, if identical transaction for earlier period has not been taxed either at the original stage or after being assessed to tax has been held to be not taxable in appeal proceedings, it would be open to revenue to re-agitate the same issue without either challenging the earlier order of the .....

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place reliance on the aforesaid principle laid down by the Apex Court in the case of C. K. Gangadharan (supra) by stating that the assessee has to show mala fide. It is not a case of any allegation of mala fide, but as noted, a question of judicial discipline of comity between the same parties in the facts and circumstances of the case and the provisions of law remaining consistent. 5. On the other hand, the Ld. Authorised Representative for Revenue submits that the earlier decision of the Tribu .....

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oner of Customs & Central Excise, Amravati [2016 (41) S.T.R. 109 (Tri.-Mumbai)]. The Ld. Authorised Representative therefore contends that the earlier decision of the Tribunal in their own case is no more binding. 6. On careful consideration of the arguments of both sides and examination of the records, we find that the issue in contention here has been examined in detail by the Tribunal in the appellant s own case (supra), and in the case of East India Minerals Ltd vs. Commissioner of Centr .....

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