Commissioner Of Central GST And Central Excise , J And K vs. Nitin Enterprises

Held

The Court decided to issue notice to show cause as to why the appeal (CEA No. 12/2018) should not be admitted to hearing. In the interim, the Court directed that the appellant (Commissioner of GST) must release 50% of the amount due to the respondent (Nitin Enterprises) as per the CESTAT's impugned judgment dated March 20, 2018. This release is to be made subject to the respondent furnishing a solvent surety to the satisfaction of the Jurisdictional Commissioner within four weeks of furnishing such surety. Upon fulfillment of this condition, the recovery of the remaining amount claimed as a refund by the respondent shall be stayed. The Court also allowed an application in MCC No. 257/2018, dispensing with the certified copy of the impugned order. The appeal was listed for further hearing on February 20, 2019.

Facts

The Commissioner of GST and Central Excise, J&K, filed an appeal (CEA No. 12/2018) against an order dated March 20, 2018, passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in appeal numbers E/51330-51336 and 56026-56031/2014-DB. The appeal concerns a refund claimed by the respondent, Nitin Enterprises. The High Court noted that the issue in this appeal is also under consideration in LPAOW No. 123/2011. The Supreme Court's order dated January 13, 2012, in Special Leave to Appeal (Civil) No. 28194-28201/2010, had previously led to an interim order in favour of the revenue. The Court also dealt with MCC No. 257/2018, allowing an application to dispense with the certified copy of an impugned order.

Key Issues

1. Whether the appeal should be admitted for hearing, considering it involves issues subject to consideration in LPAOW No. 123/2011 and a prior Supreme Court order. (Mixed question of law and fact) Petitioner's contention (Commissioner of GST): The appeal raises issues that are pending consideration in another matter before the court (LPAOW No. 123/2011) and relies on a Supreme Court order that had previously favoured the revenue. The revenue sought admission of the appeal for hearing. Respondent's contention (Nitin Enterprises): No specific arguments are recorded for the respondent in the provided text regarding the admission of the appeal. However, the respondent is the entrepreneur claiming a refund based on the CESTAT's impugned judgment.