COMMISSIONER OF CUSTOMS (PREVENTIVE) Vs. KHANBHAI ESOOFBHAI

JUDGEMENT

(1.) (CAV). - Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23-2-2005 [2006 (193) E.L.T. 223 (Tribunal)] passed by the learned Customs, Excise and Service Tax Appellate Tribunal, Mumbai (hereinafter referred to as "CESTAT"), by which the learned CESTAT has dismissed the said appeal preferred by the Revenue relying upon its earlier decision in the case of Shree Dev Krupa Ship Breaking A/778/WZB/2004, dated 3-9-2004 [2007 (210) E.L.T. 591 (Tribunal)] which subsequently came to be confirmed by the Division Bench of this Court vide order in Tax Appeal No. 537/2004, the learned CESTAT has dismissed the said appeal, the Revenue has preferred the present Appeal initially to consider the following questions of law.

(2.) At the outset it is required to be noted and it is not in dispute that thereafter on remand the appeal in the case of Shri Dev Krupa Ship Breaking (supra) came to be heard by the Division Bench of this Court and vide judgment and order dated 26-7-2012, the Division Bench of this Court has allowed the said Tax Appeal No. 537/2004 and has quashed and set aside the order passed by the learned CESTAT and has answered all the questions which are common in the present Tax Appeal also, in favour of the Revenue and against the assessee. Therefore, as such substantial questions of law raised in the present Tax Appeal are already answered in favour of the Revenue and against the assessee, by the Division Bench of this Court in Tax Appeal No. 537/2004. The aforesaid is not disputed by Shri Paresh Dave, learned Counsel appearing on behalf of the respondent. However, Shri Dave, learned Counsel appearing on behalf of the assessee has submitted that before the learned CESTAT some other submissions were also made, however without deciding other questions/submissions, the learned CESTAT dismissed the appeal preferred by the Revenue considering the decision of this Court in the case of Shree Dev Krup Ship Breaking (supra) in Tax Appeal No. 537/2004. It is submitted that therefore irrespective of the decision in Tax Appeal No. 537/2004, dated 26-7-2012, it is requested to remand the matter to the learned CESTAT to consider other issues.

(3.) It is submitted that following are such issues which arise in this case on which there is no decision of the Appellate Tribunal.