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

Held

The Court allowed the application in MCC No. 255/2018, dispensing with the certified copy of the impugned order. In CEA No. 09/2018, the Court issued notice to show cause why the appeal should not be admitted, acknowledging that the issue is pending consideration in LPAOW No. 123/2011. The Court also granted an interim direction: the appellant (Commissioner of GST and Central Excise) is to release 50% of the amount due to the respondent (Nitin Enterprises) as per the CESTAT judgment dated March 20, 2018. Upon the appellant furnishing solvent surety for the remaining amount claimed as refund by the respondent, the recovery of that remaining amount will be stayed. The appeal was listed for further hearing on February 20, 2019, along with connected matters. The Court did not decide on the admission of the appeal on merits at this stage.

Facts

This case involves appeals before the High Court of Jammu and Kashmir. MCC No. 255/2018 pertains to an application to dispense with the certified copy of an impugned order, which was allowed. CEA No. 09/2018 concerns an appeal by the Commissioner of GST and Central Excise, J&K, against Nitin Enterprises. The issue in this appeal is stated to be the subject matter of consideration in LPAOW No. 123/2011. An interim order was previously issued in favour of the revenue, relying on a Supreme Court order. The High Court issued notice to show cause why the appeal should not be admitted. An interim direction was also given: the appellant (revenue) must release 50% of the amount due to the respondent entrepreneur as per a CESTAT judgment dated March 20, 2018, and furnish solvent surety for the remaining amount claimed as refund by the respondent, which will then be stayed.

Key Issues

1. Whether the appeal filed by the Commissioner of GST and Central Excise, J&K, should be admitted for hearing, considering it raises issues that are the subject matter of consideration in LPAOW No. 123/2011. (Mixed question of law and fact, turning on procedural rules for admission of appeals and the relevance of pending matters). Petitioner's argument (Revenue): The appeal raises issues that are already under consideration in a connected matter (LPAOW No. 123/2011), implying a need for admission to address these common issues. Reliance is placed on a Supreme Court order dated January 13, 2012, in Special Leave to Appeal (Civil) No. 28194-28201/2010, which previously favored the revenue. Respondent's argument (Nitin Enterprises): The respondent is seeking release of amounts due as per a CESTAT judgment and has been directed to furnish surety for the remaining amount, indicating a dispute over the final refund. No specific arguments are recorded for the respondent regarding the admission of the appeal itself, beyond the implications of the interim directions.