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2019 (6) TMI 197

..... or various process of manufacture of dutiable and exempted goods - period July 2001 to May 2005 - HELD THAT:- The Appellants are not entitled to the credit of Furnace oil which is used in manufacture of exempted goods. Reliance placed in the case of COMMNR. OF CENTRAL EXCISE VERSUS M/S. GUJARAT NARMADA FERTILIZERS CO. LTD. [2009 (8) TMI 15 - SUPREME COURT]. Case remanded back to the adjudicating authority to ascertain the quantum of credit to be reversed / paid based upon the actual use of quantity of such input in exempted goods - appeal allowed by way of remand. - Excise Appeal No. 856 of 2010 - A/10972/2019 - 3-6-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Sh. P.M. Dave & Sh. Aditya Tripathi, Advocate f .....

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..... lal Industries Ltd. 1997 (89) ELT 247 (SC). They argued that OIO No. 4/D/2002-AC dated 30.04.2002 of the Assistant Commissioner allowing credit in their own case was upheld by the Commissioner (Appeals) and subsequently by the Tribunal and thereafter the tax appeal filed by the department before Hon ble Gujarat High Court has been dismissed on 19.02.2009 and hence the order of Joint Commissioner disallowing cenvat credit for the past period on the basis of judgments of Hon ble Supreme Court is illegal and unauthorised. The Appellate Commissioner vide impugned order dismissed the appeal filed by the Appellant holding that appellants have not produced any evidence regarding quantity of steam used in dutiable and exempted goods even after gran .....

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..... d Ashok kumar AIR 1992 SC 11. He submits that the judgment in case of B.J. Akkarra cited by the Commissioner (Appeals) also lays down the same principle that the Appellant has been agitating in this case, the principle being it is not permissible for state to take a contrary view in case of the same assessee in whose case a previous judgment involving the same subject matter was allowed to attain finality and it was also not permissible to the State to take contrary view against the same assessee for the period for which the previous decision was accepted by the department. He relies upon the decisions in case of Gujarat State Fertilizer & Chemicals Ltd. 2001 (43) RLT 270 (GUJ), Abdul Salam AIR 1981 J & K 21, Barkat Ali & Others .....

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..... hat in tax matters the principle of res judicata is not applicable. In case of Gujarat Narmada Valley Fertilizers Co. Ltd. 2014 (306) ELT 315 (GUJ.) the Hon ble Gujarat High Court has held that the ratio of judgment in case of Gujarat Narmada Valley Fertilizers Co. Ltd. 2009 (240) ELT 661 (SC) and Maruti Suzuki Ltd. 2009 (240) ELT 641 (SC) are binding on the department and even the Hon ble High Court unless and until the same are overruled by the Larger bench of the Hon ble Supreme Court. The relevant findings of the Hon ble High Court are as under: 3. 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 Su .....

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