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2013 (1) TMI 51 - HC - Central ExciseExcise duty payable on fresh mushrooms - Whether fresh mushrooms were excisable goods under the Schedules to the 1985 Act prior to the 2004 (Amendment) Act or for the first time with effect from 28th February 2005, after the 2004 amendment to the 1985 Act ? - Held that:- In view of chapter note 1 to Chapter 7 of the 1985 Act (prior to its amendment by 2004 Act), it is crystal clear that edible mushrooms, whether dried or fresh, were covered under Chapter 7 of the 1985 Act. Rate of excise duty payable on dried mushrooms under Chapter Heading 07.01 as well as the rate of excise duty on fresh mushrooms under Chapter Heading 07.02 were Nil. DTA clearances of fresh mushrooms effected by the assessee a 100% EOU - Held that:- The argument of the Revenue was rejected by the Commissioner of Central Excise (A) by holding that even if fresh mushrooms were excisable and covered under Chapter 7 of the Central Excise Tariff, in view of the Nil rate of duty, the Revenue was not justified in demanding excise duty equivalent to customs duty in respect of DTA clearances of fresh mushrooms effected by the assessee. Thus, the Commissioner of Central Excise (A) while accepting the contention of the Revenue that fresh mushrooms were excisable, held that in view of the Nil rate of duty, the Revenue was not justified in demanding duty equivalent to customs duty in respect of DTA clearances of fresh mushrooms effected by the assessee, a 100% EOU. Therefore, the argument of the Revenue that the fresh mushrooms were not excisable prior to the 2004 amendment to the 1985 Act is unsustainable. Argument of the Revenue that by the 2004 amendment to the 1985 Act, fresh mushrooms were made excisable for the first time with effect from 28th February 2005 is also unsustainable, because, the said amendment was brought about with a view to convert the existing six digit entries in the schedule to the 1985 Act to eight digit entries on par with the entries in the schedule to the Customs Tariff Act and not with a view to bring in new goods within the purview of excise. This was further clarified by issuing notification No.1 of 2005-CE dated 24th February 2005 and Trade Circular No.808/2005 dated 25th February 2005 - The fact that fresh mushrooms classified in the general category under heading 07.02 of the Central Excise Tariff prior to the 2004 amendment have been classified specifically under entry 07095100 in Chapter 7 of the Central Excise Tariff after the 2004 amendment, it cannot be inferred that fresh mushrooms became excisable for the first time after the 2004 amendment to the 1985 Act. Whether the AO was bound by the decision of Commissioner of Central Excise (A) rendered prior to the 2004 amendment to the 1985 Act - Held that:- It is well established principle of judicial discipline that the orders passed by the higher appellate authorities must be followed unreservedly by the subordinate authorities. Once the decision given by the higher appellate authority is accepted by the Revenue, then, it is not open to the AO to doubt the correctness of the order passed by the appellate authority and must follow the appellate order as decided in Jindal Dye Intermediate Limited V/s. Collector of Customs [2006 (4) TMI 128 - SUPREME COURT OF INDIA] - in favour of the assessee
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