TMI Blog2013 (10) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... d illegal or ultra vires. The adjudicating officer was reminded that he acts a quasi-judicial authority and is bound by the law of precedence and regarding the binding effect of the order of the higher authority which is the Tribunal - It was held that if such order is found to be erroneous by the Department, it needs to prefer an appeal as per the statutory provisions contained in the Central Excise Act - The decision of the Apex Court rendered in Union of India vs. Kamlakshi Finance Corporation Ltd. [1991 (9) TMI 72 - SUPREME COURT OF INDIA ] holds in unambiguous terms that the Revenue officers are bound by the decision of the appellate authorities. Despite such clear and specific directions and authoritative pronouncements, act of issuance of show cause notice by the Deputy Commissioner is wholly impermissible and unpalatable and deserves to be quashed and struck down with a specific note of strong disapproval - The respondents simply could not have exercised the powers contained under the statute in such arbitrary exercise and in complete disregard to the pronouncement of this Court particularly reminding the Revenue authorities of the binding effect of decision of Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3 of the Central Excise Act. 4. The petitioner also raised this very dispute before the Revenue authorities and appeal was preferred before the appellate Tribunal. The Tribunal held that the issue involved was covered by the decision rendered in the case of Sarla Performance Fibers Ltd. vs. Commissioner of C.Ex. Vapi (supra), where it was held that once the measure of Custom Duty equivalent to Central Excise Duty leviable on the light goods had been worked out, the question of levying the education cess separately in respect of clearance by 100% EOU to DTA would not arise. 5. The decision of Sarla Performance Fibers Ltd. vs. Commissioner of C.Ex. Vapi (supra) was challenged by the Revenue by way of Tax Appeals before this Court and after a bipartite hearing, Tax Appeals were dismissed on 19.1.2012 holding that appeal before the Supreme Court was maintainable under section 35L of the Act and not under section 35G was maintainable as the issue raised had a direct bearing on the rate at which manufacturers pay excise duty on clearances made from EOU to DTA. According to the appellants, the order of the appellate Tribunal rendered in the petitioner s appeal has become final and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordships may be pleased to issue a Wirt of Mandamus or a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside Show Cause Notices F. Nos. V.30/374/ D/12 dated 21.8.2012 and V.30/34/ D/2013 dated 22.1.2013 (Annexure G ) passed by the second Respondent with consequential reliefs and benefits to the petitioners; (D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay adjudication of Show Cause Notices F. Nos. V.30/374/ D/12 dated 21.8.2012 and V.30/34/ D/2013 dated 22.1.2013 (Annexure G ) and be further pleased to restrain the Respondents, their servants and agents from raising any demand of Education Cess as well as Secondary and Higher Education Cess for DTA clearances made by the petitioner company; (D) An exparte adinterim relief in terms of Para 19(C) above may kindly be granted; (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted. 10. On issuance of the notice, the affidavitinreply is filed by respondent No.2 wherein it has contended inter alia that the Revenue s actions of issuance of show cause notice, demanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Various appeals as mentioned hereinabove were challenged before the Division Bench of this Court which in a lead matter of Tax Appeal No.2012 of 2012 and connected appeals held that such appeals were not maintainable before the High Court and the same would lie before the Supreme Court only. This was not challenged before the Apex Court on the ground of smallness of the claims and, therefore, the decision of the Tribunal continue to hold the field. 20. When once again, show cause notices were issued to the present petitioner, it challenged the same by way of Special Civil Application No. 12686 of 2012 and this Court disapproved the act of adjudicating authority in no uncertain terms, quoting the decision of the Apex Court rendered in the case of Union of India vs. Kamlakshi Finance Corporation Ltd. reported in 1991 (55) E.L.T. 433 (S.C.), it would be profitable to reproduce such findings : 7. Having heard learned Counsel for the parties, we are of the opinion that the approach adopted by the Adjudicating Authority was wholly impermissible in law. At the outset, we may record that we are conscious that such order is appealable in terms of statutory appeals provided under Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the departmentin itself an objectionable phraseand is the subjectmatter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee s contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect. Section 35D confers adequate powers on the department in this regard. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is disposed of accordingly. 21. It needs to be noted with strong disapproval that the repeated acts of the adjudicating authority of ignoring the decision of this Court is impermissible although till date the Revenue has deemed it fit not to challenge the order passed by the higher authority or Tribunal of superior jurisdiction. 22. The submission of Revenue is that the group of appeals decided by the Court in Sarla Performance Fibers Ltd. vs. Commissioner of C.Ex. Vapi (Supra) does not conform to the monetary limits set by the said Tribunal nor do the question falls under the exception clause and hence, are not carried to the Apex Court. Be that as it may, it is an undisputed position that such decision of the Tribunal remains unchallenged. 23. Previously, when the decision of Sarla Performance Fibers Ltd. vs. Commissioner of C.Ex. Vapi (supra) was challenged by way of Tax Appeals by the Revenue, this Court decided the issue on 19.1.2012 in Tax Appeal No.2012 of 2010 and connected appeals and upheld preliminary objections of the respondent assessee that the question could be litigated before the Apex Court only by holding thus: With above discussion, if we revert back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he acts a quasijudicial authority and is bound by the law of precedence and regarding the binding effect of the order of the higher authority which is the Tribunal in the instant case. It was held that if such order is found to be erroneous by the Department, it needs to prefer an appeal as per the statutory provisions contained in the Central Excise Act. The decision of the Apex Court rendered in Union of India vs. Kamlakshi Finance Corporation Ltd. (Supra) holds in unambiguous terms that the Revenue officers are bound by the decision of the appellate authorities. 26. Despite such clear and specific directions and authoritative pronouncements, act of issuance of show cause notice by the Deputy Commissioner is wholly impermissible and unpalatable and deserves to be quashed and struck down with a specific note of strong disapproval. The respondents simply could not have exercised the powers contained under the statute in such arbitrary exercise and in complete disregard to the pronouncement of this Court particularly reminding the Revenue authorities of the binding effect of decision of Tribunal on the identical question of law. This not only led to multiplicity of proceedings b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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