TMI Blog2014 (1) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Higher Education Cess was decided finally by the Tribunal in favour of the petitioners. As of now, such decision of the Tribunal holds the field. Such decision of the Tribunal would be binding on the adjudicating authority. Even if the Department is of the opinion that the issue is not free from doubt, it is not open for the adjudicating authority to ignore the binding precedent. We may notice that under the Central Excise Act, 1944 and the Customs Act, the Department has the right to appeal even against the order-in-original passed by the adjudicating authority. This is in contrast to the provisions contained in the Income-tax Act, 1961 where against an order passed by the assessing officer, the Department has no right to appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar medicines imported into India. However, the dispute of the Department is regarding calculation of the excise duty leviable on the clearances made by the petitioners as EOU to the domestic tariff area suggesting that Education Cess as well as Secondary and Higher Education Cess are leviable on sum total of the customs duties and above cesses. In other words, the case of the Department is that the Education Cess and Secondary and Higher Education Cess to be computed second time would be inclusive of the customs duty and such cesses. Previously, such issue was raised by the Department against the petitioners. The adjudicating authority having ruled against the petitioners, the matter was carried further in appeal. Finally, the Customs, Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld such appeals were not maintainable before the High Court and would lie before the Supreme Court only. 6. Counsel for the Department informs us that because of the small claims, the Department had not filed further appeals before the Supreme Court. In other words, as of now, the issue rests by virtue of the decisions of the Tribunal noted above, in favour of the petitioners in their own cases. Despite such position, Respondent No. 3 Deputy Commissioner of Central Excise passed yet another order dated 13-7-2012 and demanded from the petitioners additional duty of Rs. 2,62,001/- towards Education Cess and Rs. 1,31,002/- as Secondary and Higher Education Cess. He ordered recovery of a total sum of Rs. 3,93,003/- with interest. He also i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing officer, the Department has no right to appeal. Only remedy available to the Revenue is by way of a revision against the order of the assessing officer that too only if it is found that such order is erroneous and prejudicial to the interest of the Revenue. Such rigors however, are not applicable insofar as the Department s right to appeal against the order of the adjudicating authority is concerned under the Central Excise Act, 1944. 8. The adjudicating officer acts as a quasi judicial authority. He is bound by the law of precedent and binding effect of the order passed by the higher authority or Tribunal of superior jurisdiction. If his order is thought to be erroneous by the Department, the Department can as well prefer appeal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Under sub-section (1), where the Central Board of Excise and Customs (Direct Taxes) comes across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfied, it can direct the Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under sub-section (2) the Collector of Central Excise, when he comes across any order passed by an au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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