MAHINDRA AND MAHINDRA LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition challenges the order dated 11 th May 2018 passed by the Customs, Excise and Service Tax Appellate Tribunals (Tribunal). By the impugned order dated 11 th May 2018, the petitioner's statutory appeal under Section 35B of the Central Excise Act, 1944 (Act) was dismissed.

(2.) The grievance of the petitioner is to the decision making process of the Tribunal in passing the impugned order dated 11th May 2018. This inasmuch as the impugned order dated 11th May 2018 ignores earlier orders in respect of the same petitioner-assessee being final orders No.A/85373- 85374/17/EB dated 20th September 2016 and No.A/86741- 86742/17/EB dated 21st March 2017, which according to the petitioner is on identical facts. This even after recording the same, without in any manner dealing with it even remotely. It is submitted the Tribunal had in petitioner's own case by orders 1 of 4 dssherla dated 20th September 2016 (supra) and 21st March 2017 (supra) had held that extended period of limitation could not be invoked on account of revenue neutrality. This after holding in its earlier orders in case of the petitioner that where duty is payable by one unit and credit is taken by other unit belonging to the same entity, the shortfall in payment of duty would be revenue neutral exercise. Thus no intent to evade tax could be attributed in such a case to invoke. The two aforesaid decisions of the Tribunal dated 20th September 2016 and 21st March 2017 in its own case were noticed by the Tribunal and yet completely ignored, so as to take a contrary view in the impugned order to hold the demands cannot be set aside on the ground of revenue neutrality. This without any distinction in facts or law in the present facts to the earlier decisions, being pointed out in the impugned order.

(3.) Mr. Jetly, learned counsel appearing for the Revenue, submits that this Court should not exercise its extraordinary jurisdiction and entertain the petition, as statutory remedy of an appeal under Section 35G of the Act is available to the petitioner. In support reliance is placed on the decision of the Supreme Court in Rajkumar Shivhare vs. Assistant Director, Directorate of Enforcement - 253 ELT 3. It is further submitted that in any event the impugned order of the Tribunal has, on facts, found that the concept of revenue neutrality cannot be invoked in the facts of the present case.