S.G. Gokani JUDGMENT
M.R. Shah, J.
1. The present Tax Appeal has been preferred by the appellant-Commissioner of Central Excise & Customs, Surat to quash and set aside the impugned judgment and order dated 21/11/2012 passed by the Customs Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') in Appeal No. E/807/2012 preferred by the appellant by which the Tribunal has dismissed the said appeal confirming the order passed by the Commissioner of Central Excise, Surat dated 05/09/2012 in OIO No. 50/Commr./Surat-II/2012 (Denovo). The appellant has proposed the following substantial questions of law;
(a) Whether the Tribunal has committed substantial error of law in dismissing appeal of the revenue solely on the basis of decision referred to by the adjudicating commissioner in the case of Shilpa Copper Wire Industries and without recording its finding on the points of contention raised before it by the revenue?
(b) Whether the expression "free on board value of export" appearing in para 9.9(b) of the EXIM policy includes value of domestic clearance for the purpose of extending benefit of exemption notification No. 2/95-CE dated 04/01/1995, as amended, to the respondent?
(c) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in by confirming order of the Adjudicating Commissioner which is inconsistent with Circular F. No. 305/48/FTT dated 07/04/2000 issued by the Department, even though validity of the said circular has been upheld by the Madras High Court in the case of BAPL Industries Ltd v. Union of India 2007 (211) ELT 23 (Mad.)?
(d) Whether in the facts and circumstances of the case, impugned order passed by the Tribunal is contrary to the decision of the Tribunal in case of Jumbo Bag Ltd v. Commissioner of Customs MANU/CC/0220/2011 : 2011 (268) ELT 81 (Tri. - Chennai) and CCE & C v. Shilpa Copper Wire Industries 2009 (247) ELT 551 (Tri. - Mumbai) as well as decision of Madras High Court in the case of BAPL Industries Ltd v. Union of India 2007 (211) ELT 23 (Mad.)?
2. Shri R.J. Oza, learned Senior Counsel appearing on behalf of the appellant has vehemently submitted that the Tribunal while dismissing the appeal preferred by the appellant has relied upon the decision of this Court in the case of CCE v. Shilpa Copper Wire Industries MANU/GJ/1606/2010 : 2011 (269) ELT 17 (Guj.), however has not, as such, discussed the facts and observed anything whether on facts the said decision would be applicable or not. In support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of CCE v. Srikumar Agencies MANU/SC/8204/2008 : 2008 (232) ELT 577 (SC). No other submissions have been made.
3. Having heard Shri R.J. Oza, learned senior Counsel appearing on behalf of the appellant and considering the impugned judgment and order passed by CESTAT, it is true that as such CESTAT has not discussed at all whether on facts the decision of this Court in the case of Shilpa Copper Wire Industries (supra) would be applicable or not. It is true that CESTAT was required to narrate some facts and discus whether on facts the decision upon which reliance has been placed would be applicable or not. In the case of Srikumar Agencies (supra) in paragraphs 4, 5 and 6 the Hon'ble Supreme Court has observed and held as under:
4. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations mus........