TMI Blog2009 (12) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 to July, 2007. He passed an Order In Original on 19-3-2008 deciding the above two show causes notices against the petitioner and demanding duties and imposing penalties. Held that- We remand this matter to the Commissioner (Appeals) with a direction to decide the Appeal afresh in conformity with the CESTAT’s order or in the alternative by passing a speaking order as to how the CESTAT order in the earlier year in petitioner’s own case is not applicable to the facts of the case before him. By the time the fresh order is passed, if the order of CESTAT is either reversed or suspended by the Apex Court, the Commissioner will take appropriate view in the matter. - 4354 of 2009 - - - Dated:- 2-12-2009 - K.A. Puj and Rajesh H. Shukla, JJ. Shri Paresh M. Dave, for the Petitioner. Shri Y.N. Ravani, for the Respondent. [Judgment per: K.A. Puj, J. (Oral)]. - Rule. Mr. Y.N. Ravani, learned Standing Counsel appearing for Excise Department waives service of rule. 2. With the joint request of parties the matter is taken up for final hearing. 3. The petitioner has filed this petition under Article-226 of the Constitution of India praying for quashing and setting aside the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the CESTAT, two more show-cause notices were issued on 22-2-2008 and 25-7-2008 covering the period from August, 2007 to June, 2008. The Assistant Commissioner passed Order In Original in respect of these two show causes notices on 21-7-2008 and 31-10-2008 respectively and demanded duties and imposed penalties. 8. The CESTAT, Ahmedabad allowed the petitioner's Appeals on merits holding that the above goods supplied against the certificates as specified in the Notification were exempt and the Appeals came to be allowed with consequential benefit in the petitioner's favour. 9. So far as Appeals filed by the petitioner against the Order-in-Original passed by the Assistant Commissioner in respect of subsequent two show cause notices are concerned, the petitioner appeared before the Commissioner (Appeals), Ahmedabad on 25-3-2009 and submitted a copy of the final order of the CESTAT, Ahmedabad and also various other decisions of various Benches of the CESTAT in respect of Notification dated 10/97-C.E. The Commissioner (Appeals), however, dismissed the petitioner's Appeals vide his order dated 31-3-2009 on the ground that though the decision of the CESTAT, Ahmedabad in the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner's own case, but he has also pointed out three more aspects on the basis of which he came to the conclusion that the petitioner is not entitled to exemption from payment of excise duty. Mr. Ravani further pointed out that the petitioner is challenging the order of the Commissioner (Appeals) in the present petition against which the Appeal lies to the CESTAT. Since an alternative remedy is available to the petitioner, this Court should not entertain the present petition. 13. Having heard the learned counsels appearing for the parties and having considered their rival submissions in light of the judicial decisions cited before the Court, we are of the view that the Commissioner (Appeals) has committed an error in not following the order passed by the CESTAT in the petitioner's own case. While disposing of the Appeal which is decided by the Commissioner (Appeals), it is observed as under:- "I have also gone through the decision of Hon'ble CESTAT, WZB, Ahmedabad in the case of M/s. Inductotherm (India) Pvt. Ltd., v. CCE, Ahmedabad wherein the parties appeal allowed and demand is set aside. I find that in the said order a CESTAT is relied on the following judgments, (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of higher forum available in the assessee's own case, the same has to be followed by the lower authority unless certain distinguishing features are pointed out by such lower authority or the order of the higher authority is reversed or suspended. Nothing of this sort has happened in the present case. It is true that the Excise Department has preferred an Appeal before the Apex Court against the order of CESTAT. However, the Appeal is filed belatedly and only notice for condonation of delay is issued on the other side. This fact itself is not sufficient to empower the Commissioner to take different view and not to follow the order passed by the CESTAT. 15. In Kamlakshi Finance Corporation Ltd. (supra) the Bombay High Court has strongly criticized the conduct of the Excise Officers. It is observed therein that in the remand order, the Assistant Collector did not give any reasons as to why he differed from the decision of the Collector of Central Excise (Appeals), Bombay on which the appellant placed reliance before him. It is pointedly indicated that the ground given was untenable. The Assistant Collector of Central Excise was on remand directed to issue a reasoned and speaking or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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