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Central Excise - Case Laws
Showing 81 to 100 of 278 Records
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2016 (9) TMI 1019
Refund claim - unjust enrichment - appellant applied for provisional assessment - collected the duty amount from the customers and have not submitted proper documentary evidence to prove that they have not passed on the incidence of duty to the customers - Held that:- in the present case it is not disputed that all the three refund claims have arisen due to finalization of provisional assessment during the period from April 1998 to December 1998. The appellant submitted that when the assessments are provisional and such assessments are finalized in terms of Rule 9B of Central Excise Rules 1944 then the provisions of Section 11B are not applicable to such cases when the assessments are finalized. He further submitted that this issue is no more res integra and relied upon the judgment of the Hon’ble Supreme Court of India in the case of CCE vs. Mafatlal Industries Ltd. [1996 (12) TMI 50 - SUPREME COURT OF INDIA]. Therefore, in view of the same, the impugned order is set aside. - Decided in favour of appellant with consequential relief
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2016 (9) TMI 1018
Refund claim - unjust enrichment - whether the refund sanctioned by Assistant Commissioner is wrong, since the appellants have not proved that they have not passed on the duty burden - duty paid under protest - refund pertains to refund of pre-deposit amount - only - Held that:- it is found that the respondents have not produced any specific documentary evidence to prove that the duty has not been passed to other person/ buyer to nullify the doctrine of unjust-enrichment. I do not find that they were forced by any authority and that they followed correctly the provisions of law applicable to under protest payments. It is also found that the respondents have submitted that they were forced to debit the duty, that they made the payment under protest at the time of preventive checks of the goods sold during the period 01.04.1997 to 27.09.1997 but I do not find any evidence proving forced recovery debit and also there is no endorsement on the TR-6 challans for payment under protest as prescribed under Rule 233B of the Central Excise Rules, 1944. The Hon’ble Supreme Court in the case of Mafatlal Industries Limited vs. UOI [1996 (12) TMI 50 - SUPREME COURT OF INDIA] and in the case of Sahkari Khand Udyog Mandal Limited vs. Commissioner [2005 (3) TMI 116 - SUPREME COURT OF INDIA] held that no refund can be made unless it is established that burden of duty is not passed on to others. Therefore, in view of the same, we find no infirmity in the impugned order of Commissioner (Appeals) which is upheld. - Decided against the appellant
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2016 (9) TMI 1017
Period of limitation - Refund claim - duty paid on discounts which were passed subsequent to the clearance of the goods from the depots - appellant contended that the data relating to the discounts for calculating refund claim could be available only after its sale from the depots, therefore, the time of sale from the depots, be considered as relevant date for the purpose of computing the period of limitation - Held that:- it is clear that the payment of duty should be the basis for computing the period of limitation prescribed under Sec.11B of CEA, 1944 for claiming refund of duty and not the time sale of the goods from the depots as argued by the Department. The provision should be read as it is, no addition or subtraction is permitted in understanding its meaning. - Decided against the appellant
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2016 (9) TMI 1016
Suppressed production of clandestine clearances of goods without payment of duty - approximation production considering average yield of the product viz. zinc oxide out of the raw material issued - department has not gone beyond the approximation of yield shown as 70 to 84% - average yield overall had been shown as 77.60%. - Demand alongwith interest and imposition of penalty.
Held that:- there is nothing on record from the Revenue side to come to a reasonable conclusion to say that there has been preponderance of probability of such suppressed production on the part of the appellant. The evidences in the form of approximation and averaging production as 77.6% and one statement of Shri Agarwal, Director of the appellant company cannot be called a prudent conclusion of the production estimate. Therefore, we are of the considered view that the department has not discharged its burden of conclusively proving the case of suppressed production and clandestine clearance by the appellants. In this regard we seek support from Hon’ble Allahabad High Court’s decision in the case of Continental Cement Company Vs. Union of India [2014 (9) TMI 243 - ALLAHABAD HIGH COURT] and Supreme Court’s decision in the case of Oudh Sugar Mills Ltd. Vs. Union of India [1962 (3) TMI 75 - SUPREME COURT OF INDIA] and CESTAT’s in the case of Punalur Paper Mills Ltd. Vs. CCE [2008 (8) TMI 471 - CESTAT, BANGALORE]. In view of the above, the impugned order in respect of confirmation of duty for alleged suppressed production, and imposition of fine and penalty on the appellant No. 1 and imposition of personal penalty of ₹ 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside.
Demand - inputs short found - duty deposited by the assessee-appellant and was appropriated to the Government account by the impugned order - Held that:- there has not been any submissions by the appellants. Therefore, this part of the order confirming the said duty does not warrant any intervention from this Tribunal. It is hereby sustained. - Appeals disposed of
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2016 (9) TMI 1015
Manufacture - whether the appellant-assessee is the ‘manufacturer’ of PET bottle - appellant-assessee procures pre-forms required to manufacture of PET bottles and supply the same to job worker who converts the pre-forms into PET bottles and there upon fills the same with fruit pulp which is an exempted product - Held that:- the appellant-assessee cannot be considered as a ‘manufacturer’ of PET bottle for the simple reason that they have not undertaken any such process. In other words, if they supply pre-form to the job worker to be converted into PET bottles and for the further use in packing the fruit pulp, the same cannot make the appellant -assessee as a manufacturer. The admitted fact of the case is the job worker is an independent legal entity and irrespective of ownership of pre-form or the PET bottle the appellant-assessee having been not involved in any process of manufacture cannot be held as a manufacturer for excise duty purposes.
Notification No. 10/96-CE dated 23.07.1996 - captive consumption - eligibility for exemption - Held that:- it is found that the fruit pulp cannot be marketed without being packed in the bottle. The packed fruit pulp is the product subjected to excise levy. In the manufacture of such packed fruit pulp, PET bottle is apparently consumed. By applying to the ratio of decision of the Tribunal in the case of Mihijam Vanaspati Limited vs. CCE, Jamshedpur [2001 (1) TMI 152 - CEGAT, KOLKATA]and also in Rama Phosphate Ltd. vs. CCE, Indore [2002 (12) TMI 291 - CEGAT, NEW DELHI] wherein Tribunal held that when the tin containers manufactured by the appellant are captively used for packing vanaspati within the factory, the exemption is available to such tin container, the exemption is available to appellant-assessee. - Decided in favour of assessee
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2016 (9) TMI 1014
Rectification of mistake - seeking rectification of various errors in the final order - Held that:- it is found that the Bench has categorically recorded the findings on all the submissions made by the applicant-respondent. The Bench has also clearly indicated why it has arrived at a conclusion to hold that prior to 1.7.2000, the provisions of Rule 6(b)(ii) of the Valuation Rules, 2000 needs to be applied into, read with circular. The Bench has clearly indicated why conclusion was reached as to the expenses in respect of indirect/overhead charges needs to be included in the value/cost of the product. In our considered view, we find that all the points which have been raised by the appellant as error apparent on the face of the record, was addressed to and findings were recorded by the Bench in unequivocal terms after considering the very same submissions made. We find that the applicant-respondent is trying to reargue the entire case by stating that these are mistakes apparent on the face of the record. This is not in consonance with the settled law that error apparent on the face of the record should not be an alibi for rearguing the entire case. - Decided against the appellant
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2016 (9) TMI 1013
Imposition of penalty - Section 11AC of Central Excise Act, 1944 - manufacture and clearance of Electroplating Chemicals like Gold Potassium Cynide (GPC) without payment of duty - Commissioner (Appeals), has not extended an option to pay 25% of the penalty as prescribed under Section 11AC of Central Excise Act, 1944 - Held that:- it is found that the learned Commissioner (Appeals) has analyzed the evidences and arrived at the conclusion that the Appellant has indulged in clandestine manufacture and clearance of GPC during the relevant period. Also, he has considered the role of the Managing Director Shri Chandrakantbhai L. Shah in the said activity of the Appellant of clandestine manufacture and clearance of GPC. Therefore, I do not find any reason to record a different finding than that arrived at by the learned Commissioner (Appeals).
Reduction of mandatory penalty - Held that:- I do not see any justification in the impugned order in reducing mandatory penalty imposed under Section 11AC of Central Excise Act, 1944 from ₹ 2,29,360/- to ₹ 1.00 lakhs. The Hon'ble Supreme Court in the case of Union of India Vs Dharmendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT] has held that the mandatory penalty imposed under Section 11AC of Central Excise Act, 1944 cannot be reduced. Also, I do not find any reason to interfere with the penalty imposed on the Director as held in the impugned order of the learned Commissioner (Appeals). Therefore, the mandatory penalty as ordered by the Adjudicating authority is restored. However, the Appellant are eligible to exercise the option to pay 25% of the said penalty amount of ₹ 2,29,360/- in view of the judgment of Hon’ble Gujrat High Court in the case of CCE Vs Harish Silk Mills [2010 (2) TMI 494 - GUJARAT HIGH COURT] and CCE Vs G.P.Presstress Concrete Works [2012 (8) TMI 933 - GUJARAT HIGH COURT] on fulfillment of the conditions laid down under Sec. 11AC of CEA, 1944. - Decided partly in favour of appellant
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2016 (9) TMI 984
Validity of order directing special audit - Section 14AA of the Central Excise Act, 1944 - breach of principles of natural justice - petitioner was not afforded any opportunity of hearing - non-specification of any ground that the petitioner has availed of duty credit or utilised cenvat credit beyond the normal limits - Held that:- Section 14AA of the said Act empowers the Principal Commissioner or the Commissioner of Central Excise to have the accounts of a manufacturer audited by a cost accountant or a chartered accountant nominated by them in the event he finds any of the grounds enumerated therein to be satisfied. As the impugned order stands, the Commissioner has not specified the materials on the basis of which he has formed the opinion that the petitioner has availed of duty credit or utilised cenvat credit beyond the normal limits having regards to the nature and quantity of finished goods manufactured and cleared. The Commissioner has not discussed the nature of finished goods manufactured and cleared by the petitioner. The Commissioner has not discussed of the quantum of the duty credit or utilised cenvat credit by the manufacturer. The foundational basis for the assumption of jurisdiction by the Commissioner under Section 14AA of the said Act has not been stated in the impugned order. Therefore, the impugned order is unreasoned.
Section 14AA of the said Act does not contemplate that the assessee is entitled to a right of hearing before a decision is taken thereunder. By applying the ratio of decision of Hon'ble Supreme Court in the case of Sahara India (firm) vs. Commissioner of Income-Tax & Another [2008 (4) TMI 4 - Supreme Court] and more particularly when Section 14AA of the said Act entails civil consequences and where such section does not specifically debar the application of the principles of natural justice, the authorities are, therefore, required to afford a reasonable opportunity of hearing to an assessee before a decision is arrived at under such section. In the present case, it does not appear from the materials made available on record that the authorities have afforded the petitioner an opportunity of hearing prior to the issuance of the impugned order. Therefore, the impugned order is set aside. - Appeal disposed of
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2016 (9) TMI 983
Disallowance of rebate - goods manufactured by SAIL were exported - petitioner had allegedly committed procedural lapses which was condoned on the earlier occasion - validity of Revision order under Section 35EE of the Central Excise Act, 1944 - Held that:- the revisional authority has not found that, the petitioner did not export Central Excise Duty Paid goods out of India, or that the relevant ARE forms do not bear the appropriate customs endorsements. The alleged procedural lapses for the consignment under consideration have also not been alluded to or identified. Therefore, the impugned order is set aside. - Decided in favour of petitioner
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2016 (9) TMI 982
Input tax credit - whether the CESTAT is correct in rejecting the appeals, wherein the refund sought under Rule 5 of the CCR, 2004 is deniable to the party, as for the export of wholly exempted goods, execution of bond/LUT is neither required nor legally acceptable - Held that:- once the issue involved in the present appeal has already been gone into by the Hon'ble Supreme Court and judgments of Bombay High Court and Himachal Pradesh High Court, have been upheld granting relief to the assessee, we do not find that any substantial question of law arises in the present appeal. - Decided against the Revenue
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2016 (9) TMI 981
Whether the Hon'ble Tribunal was correct in dropping the demand towards pertaining to the extended period of limitation when it had itself relied upon the judgment of Hon'ble Apex Court in the case of Maruti Suzuki India Ltd. vs. CCE Delhi [2014 (9) TMI 229 - SUPREME COURT] and Super Synotex (India) Ltd. vs. CCE Jaipur [2014 (3) TMI 42 - SUPREME COURT] wherein it was held that amount of sales tax concession retained by the respondent is required to be added in the assessable value - Held that:- once the assessee was found to be at fault in view of the law laid down by Hon'ble the Supreme Court, the extended period of limitation could have been permitted. Therefore, we do not find any merit in the present appeal. The Tribunal has dealt with the issue of limitation that circular dated 30.06.2000 issued by Central Board of Excise and Customs providing that any amount of concession on sales tax retained by the assessee is not required to be added in the assessable value and an earlier order passed by the Tribunal in favour of the assessee has also been referred to. Hence, the assessee cannot be said to be at fault and the extended period of limitation was not available. - Decided against the Revenue
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2016 (9) TMI 980
Whether the Tribunal is correct in holding that the extended period of limitation cannot be invoked when the respondent has failed to disclose or suppressed the material information from the department as the same came to the knowledge of the Department during the course of Audit only - Held that:- once the assessee was found to be at fault in view of the law laid down by Hon'ble the Supreme Court in the case of Maruti Suzuki India Ltd. vs. CCE Delhi [2014 (9) TMI 229 - SUPREME COURT] and Super Synotex (India) Ltd. vs. CCE Jaipur [2014 (3) TMI 42 - SUPREME COURT], the extended period of limitation could have been permitted. Therefore, we do not find any merit in the present appeal. The Tribunal has elaborately dealt with the issue of limitation. The assessee cannot be said to be at fault at that time in view of circular of the Board and earlier order of Tribunal in favour of the assessees. Hence, the assessee was not at fault and the extended period of limitation was not available. - Decided against the Revenue
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2016 (9) TMI 979
Maintainability - writ petition before this Court - seeking issue a writ, order or directions in the nature of certiorari to quash the impugned order passed by respondent, impugned order passed by CESTAT, New Delhi and order of the respondent no. 2. Also seeking to issue writ, order or direction in the nature of mandamus directing the CESTAT, New Delhi to decide the appeal of the petitioner on merit - remedy of appeal under section 35-G of the Central Excise Act, 1944 is available to the petitioner - Held that:- after arguing the writ petition at some length, the petitioner seeks to withdraw present writ petition with liberty to file the statutory appeal under section 35-G of the Central Excise Act, 1944. - Writ petition disposed of as withdrawn
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2016 (9) TMI 978
Demand alongwith interest - Shortage of TMT bars - such shortages were accepted by the Appellant in physical stock-taking, but never admitted that the shortages were clandestinely removed from the factory - no evidence of clandestine removal from Appellant's factory - only statement of Shri Dipak Choudhary, Manager of the Appellant was available - Held that:- appellant never reverted back to the investigation before the issue of show cause notice that shortages found were reconciliable and that in fact there was no shortages in the stock of finished goods. A different stand taken after the issue of show cause notice, without any retraction, will have to be considered as an after-thought under proper legal advice. By admitting the shortages and not coming forward to explain the same, blocks the investigation. In the case of Majestic Auto Ltd. v. CCE [2004 (7) TMI 136 - CESTAT, NEW DELHI] CESTAT held that demand with respect to shortages can be confirmed when no tangible evidence and explanation was offered by the noticee. It is also made clear in this case law that there is no need for the department to produce any tangible and positive evidence to prove clandestine removal when Appellant has admitted the shortages and does not come forward to explain the shortages. No contrary judgement has been brought on record by the Appellant. Therefore, duty has been correctly confirmed against the Appellant along with interest.
Non-extension of option of 25% reduced penalty - Section 11AC of the Central Excise Act, 1944 - Held that:- in the interest of justice, Appellant is given the option to pay 25% reduced penalty if the same is paid along with duty and interest demanded within 1(one) month from the date of receipt of this order. - Decided in favour of appellant
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2016 (9) TMI 977
Demand and imposition of penalty - appellant admitted the duty liability wherever extra considerations were received from the buyers over and above the invoice amount - demand raised on the basis of value of moulds arrived at based on statements given by other such manufacturers - denial of cross-examination and lack of other corroborative evidence to support the demand - Held that:- on collection of details by way of various corroborative evidence and admissions by the proprietor of the appellant firm, the conclusion was arrived that the value of footwear moulds shown in the bills is not correct transaction value and the appellant mis-declared the same to evade payment of Central Excise duty. Regarding correct valuation of the impugned goods based on evidences collected and the appellant's own admission, the calculation was concluded.
Though, admittedly the appellant is free to dispute and challenge the duty payment afresh in the appeal proceedings before us it will be worthwhile to note that before another statutory authority, the Settlement Commission, the full duty liability has been accepted by the appellant. Therefore, the present appeal is to be decided only on material evidence available on record and not based on the application before the Settlement Commission. Therefore, the Revenue is able to establish with overwhelming evidence the evasion of duty by the appellant. hence, the appellant could not make out a convincing case to interfere with the order of the lower Authority. - Decided against the appellant
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2016 (9) TMI 940
Imposition of penalty - Section 11AC of Central Excise Act, 1944 - raw materials and finished goods - found short in the appellant premises - clandestine removal of goods - Held that:- it is a fact that Revenue is solely relying upon the shortages. There is virtually no other evidence to reflect upon the manufacture of appellant s final product, their transportation, recognition of the buyers and receipt of sales proceeds by allegedly clandestine removed goods. In the absence of such evidence and in the light of precedent decision of the Tribunal, which stand discussed in detail by the Commissioner (Appeals), the charges of clandestine removal cannot be held to have been established. The onus to prove clandestine removal is admittedly on the Revenue and is required to be discharged with production of sufficient evidence, which at least may lead to the probability of having removed the goods. As such, I am of the view that the findings arrived at by the lower authorities that shortages by itself cannot held to be clandestine removal of goods is appropriate decision, thus not requiring any interference with.
Confiscation - Rule 15 of the Cenvat Credit Rules, 2004 and Rule 25 of the Central Excise Rules, 2002 - raw materials and scrap - found in excess quantity - Held that:- it is found that it stand recorded by the authorities below that there was no evidence to show that such non-recording in the statutory records was on account of any malafide. Neither were the goods in process of being removed nor is there any sufficient material to show that same were meant for removal without payment of duty. As such, I find no justification for the confiscation of the same as prayed for by the Revenue. - Decided against the Revenue
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2016 (9) TMI 939
Manufacture - marketability - Duty liability - goods got fabricated by the appellant from the job workers - appellants engaged in fabrication of gates and gate parts for irrigation project using M.S. Sheets, Plates, Angles etc. - items were made as per specifications of the project and are not regularly traded items - Held that:- the original authority presumed marketability on the basis that even a single buyer will constitute the market. We find in the present case the specified parts of irrigation gates which are ultimately installed into immovable structure are not bought and sold. These specific parts were fabricated as intermediate parts to create a final structure.It is found that the facts of the case are similar to the one decided by the Karnataka High Court which was affirmed by the Hon’ble Supreme Court.
It is also noted that the Hon’ble Supreme Court in Board of Trustees vs. Collector of Central Excise, A.P. [2007 (8) TMI 350 - SUPREME COURT OF INDIA] held that in order to constitute goods twin tests have to be satisfied, namely, process constituting manufacture and secondly marketability. It is well-settled that goods are manufactured with the object of being sold in the market. If the goods are not capable of being sold then the test of marketability is not fulfilled. Further, the burden is on the Department to prove whether there is the process which constitutes manufacture and secondly whether the product is marketable. The Hon’ble Supreme Court concluded that the impugned goods in that case is made of particular specification and cannot be used anywhere else. There is no evidence coming from the department to show that said specified products are bought and sold in the market as a commodity. Accordingly, the impugned order is set-aside. - Decided in favour of appellant
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2016 (9) TMI 938
Manufacture - Whether the process of fitting electric motors to imported sewing machines amounts to manufacture within the meaning of 2 (f) of the Central Excise Act 1944 read with section note 6 to section XVI of the Central Excise Tariff Act and if the process amounts to manufacture, whether the resultant sewing machines are eligible for exemption under serial No. 201 and of notification No. 6/2002 - Held that:- what has been imported is sewing machine even though the motor has not been fitted. After fitment of the motor it remains sewing machine. It cannot be said that the addition of motor has brought into existence any new article which has a character, name or use which is different from the components which have gone into it. Accordingly, it cannot be said that the addition of motor has brought into existence any new product and consequently no manufacture has taken place and hence, no liability for payment of Central Excise Duty arises in this case. Even if a view is taken that addition of motor results in a complete article liable for payment of excise duty, we find that it will be covered by the exemption given in serial No. 201 of notification 6/2000-CE.
The exemption is available to those sewing machines which do not have an inbuilt motor. The concept of what constitutes a sewing machine with inbuilt motor has been examined by the Tribunals in many cases referred to the case of Gabbar Engineering Co. Vs. CCE, Ahmedabad [2009 (8) TMI 255 - CESTAT, AHMEDABAD]. - Decided in favour of appellant
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2016 (9) TMI 937
Demand and imposition of penalty - excess stock of molasses found in the storage tanks, unaccounted in the statutory records - clandestine removal of molasses - regular statement of MF-1 submitted by the parties to the State Excise Department - Held that:- the variation found in the stock of molasses on 14/07/98 upon inspection by the Central Excise authority is a normal variation and no adverse inference is called for. Further, I take notice of the fact that the State Excise authority, who are in physical control of the stock of molasses of production, storage and dispatch in the appellant's factory have excepted the recorded stock and at the end of the molasses season have accepted the net excess at 961qtls. Therefore, I hold that the whole demand is based on assumption and presumptions and is fit to be set aside.
The appellant informs that the duty and penalty in dispute have been appropriated by the Central Excise authority during the pendency of the appeals with the refund payable to the appellant. Accordingly, I direct the adjudicating authority to refund the amount adjusted, being in the nature of pre-deposit as the same have been adjusted out of refundable amount during pendency of the appeal, with interest as per Rules.
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2016 (9) TMI 936
Job-work - valuation - activity of building body at their factory on the duty paid motor vehicles' chassis supplied to them - appellants were acting as job worker to MIL - Held that:- the value of the goods supplied by the appellants is to be determined under Rule 10A of the Central Excise Valuation Rules, 2000 and not under Rule 6.
The identical issue involved in these appeals has already been analysed at length in the various judgments of Tribunal upholding the stand of the department, and in fact the Tribunal view has also been sustained by the Hon'ble High Court of Bombay in in Hyva India Vs Union of India [2015 (5) TMI 25 - BOMBAY HIGH COURT]. This being the case, notwithstanding the Learned Advocate's valiant, but vain, efforts to convince us that the judgments are per incuriam and his other arguments that valuation rules has to be read with charging section, his reference to Committee set up by CBEC and report thereof on provisions for job work valuation etc., judicial discipline and judicial propriety requires us to follow and apply the ratio of the judgments cited supra especially when it is not the case of appellant that the same has not been stayed or overturned by higher courts. - Decided against the appellant
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