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2005 (7) TMI 112 - HC - Central ExciseJudicial discipline - Validity Of show cause notice - Whether the respondents, more particularly respondent No. 3, is entitled to go behind an order of the Tribunal and refuse to implement it by issuing the impugned show cause notice - HELD THAT:- It is not disputed on behalf of the respondent authorities that the order of Tribunal dated 23rd July, 2003 has become final, there being no challenge to the said order. In the circumstances, the respondent authority could not have undertaken to ignore the said order by raising an issue which, to say the least, is a non-issue. The Tribunal, in its order dated 23-7-2003, has categorically held in paragraph No. 2(b) that, "Engines are cleared for home consumption on payment of excise duty". Nothing has been brought on record to show that the aforesaid finding of fact recorded by the final fact finding authority is incorrect in any manner whatsoever or is not supported by evidence. In fact, as noted hereinbefore, the order of the Tribunal, has attained finality and in the circumstances, it is not possible for any subordinate authority to go behind the said order, more particularly, qua findings of fact recorded by the Tribunal. Therefore, the specious plea made by respondent No. 3, to the effect that the petitioner had not established that the engines had borne duty, is not only hollow but bereft of any substance and against the settled legal position. The fact that the impugned show cause notice has been issued at a subsequent stage and after issuance of communication dated 7-1-2004 (Annexure "F") would go to show that the said notice has not been issued with an honest intent. As this Court is not called upon to undertake an inquiry in this regard, suffice it to state that the notice does not appear to be bona fide. Vide Circular No. 695/11/2003-C.X., the Central Board of Excise & Customs has laid down as to in what circumstances the goods must be released or refund must be granted and in this connection, it is stated that "The order of High Court or Tribunal should be implemented unless a stay has been obtained from the higher judicial forum on the implementation of the order. Further, consultation with Board in such cases may cause into delay in finalization of the refund claims". Accordingly, the Board has directed the jurisdictional commissioners to take decisions in such cases at their level to grant refund. Therefore, applying the aforesaid circular also, if the action of the respondents is tested, it becomes clear that the respondent was not justified in issuing the impugned show cause notice. However, what is more material to note is that in case of M/s Kapoor Machinery Stores, vide order dated 24-9-2004, a Single Member Bench has allowed application for rectification of mistake by recording that the earlier order dated 29-4-2004 was passed on a wrong appreciation of facts and accordingly, the appeal has been restored to original number. Therefore, the reliance by the respondent on the order of the Tribunal which does not exist any more is misplaced. Even otherwise, it goes without saying that when there are two conflicting orders, one of a Single Member and one by a Division Bench, the order issued by the Division Bench would prevail. In the show cause notice, the respondent No. 3 has placed reliance on Circular No.224/58 of 96-CX., dated 26-6-1996. It is an admitted position that the said circular was cited before the Tribunal in the petitioner's case and has already been considered. Therefore, apart from the position in law as to judicial discipline being required to be maintained, none of the other grounds on which the impugned show cause notice is based survive in law. In the result, the impugned show cause notice bearing F. No. V84(18)-1236/2004-Ref., dated 3rd February, 2005 (Annexure "H") is hereby quashed and set aside. The petitioner is entitled to take credit for the sum as stated in its communication dated 10-11-2004 without being prevented from doing so. The petition is accordingly allowed. Rule made absolute. The respondents shall pay costs quantified at a sum of Rs. 5,000/- (Rupees five thousand only). In the first instance, the same shall be paid by the respondent authorities and thereafter, recovered from respondent No. 3 personally.
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