Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2021 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (4) TMI 138 - HC - Central ExciseRevising the order of Rejection of refund claims - the appeals filed by Revenue (against grant of refund) were earlier dismissed on the grounds of monetary limit - benefits in terms of Notification No. 20/2007 CE dated 25.04.2007 - area based exemption - substantial expansion - HELD THAT:- In the recital of the impugned order the respondent No. 3 refused to accept that the petitioner complied with the requirement of the Notification No. 20/2007 dated 25.04.2007 regarding investments of fixed assets more than 25% towards expansion of the manufacturing unit. Although, the order of the Commissioner (Appeals) is referred to, however, the respondent No. 3 did not elaborate as to why it disagreed with the findings of the Commissioner (Appeals) although, the petitioners submitted their objections in response to the said show cause notice and had also referred to the findings of the Commissioner (Appeals) therein. The respondent No. 3 in its order held that although the appeals before the CESTAT have been withdrawn on the basis of monetary limits for pursuing litigation as prescribed by the Central Board of Excise and Customs, the respondent No. 3 was of the opinion that the CESTAT orders have not binding effect on the adjudication authority to take an particular stand in the matter. There is no discussion in the impugned order as to the effect of the findings of the fact which is reflected in the Commissioner (Appeals) order. Although, the Principle of Res Judicata is strictly not applicable to revenue matters, however, a finding of fact by a higher authority like the Commissioner (Appeals) cannot be ignored. The importance of the requirement of maintaining the judicial discipline by Quasi Judicial Authority like the respondent No. 3, as time and again been stressed upon by the Apex Court in catena of Judgments - In the case of Union of India and Ors –Vs- Kamlakshi Finance Corporation Limited reported in [1991 (9) TMI 72 - SUPREME COURT] held that the order of the Appellate Collector is pending on the Assistance Collector and the working within his jurisdiction order of the Tribunal is binding upon the Assistant Collector and the Appellate Collector who function under the jurisdiction of the Tribunal. The Principles of judicial discipline require that the orders of the higher appellate authority should be followed unreservedly by the Subordinate Authority. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal - The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. The finding of fact recorded by the Commissioner of Appeals in respect of the fulfillment of the requirement under Notification No. 20/2007 dated 25.04.2007 by the petitioner, in view of the dismissal of the Revenue appeals by the CESTAT has attained finality. Such findings of fact cannot be unilaterally disregarded by the Departmental Officer merely because it was not agreeable to them. It was incumbent upon the respondent No. 3 to reflect in its order, impugned in the present proceedings, the grounds and reasons for disregarding the said finding of fact by the Commissioner (Appeals) - In the absence of any clear finding by the respondent No. 3 to support its disagreement with the finding of fact by the Commissioner of Appeals, mere disagreement with the order of the Higher Authority, namely, Commissioner (Appeals) will be opposed to the Principle of judicial discipline required to be maintained by Quasi Judicial Officers exercising Quasi Judicial functioning. Such, actions of the respondent No. 3 cannot be countenanced in view of the law laid down by the Apex Court. Considering the fact that the disagreement by the respondent No. 3 with the findings of the Higher Appellate Authority, namely, the Commissioner (Appeals) is on factual aspect, records of which are available in the Department, the matter is remanded back to the authorities and the respondent authority is directed to pass appropriate orders afresh in the matter after giving adequate opportunities to the petitioner within a period of 3(three) months from today - Petition allowed by way of remand.
|