TMI Blog2014 (5) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... ts own battle and must succeed or fail in such proceedings - Held that:- It is required to be noted that the decision of Division Bench of this Court in the case of NBM Industries (Supra) is binding upon the respondent No.4 . Merely because the said decision is in the case of another assessee , the respondent No.4 could not have ignored the same and/or not followed the same by holding that it is not binding ruling as the same is in case of another assessee . It appears that the respondent No.4 has not properly understood the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (1996 (12) TMI 50 - SUPREME COURT OF INDIA). In the case of Mafatlal Industries Ltd. (Supra), the Hon'ble Supreme Court has never held that a decision of the higher appellate authorities/courts which may be in the case of another assessee are not binding to the lower authorities, on the ground that the same is in the case of another assessee . It is also not held by the Hon'ble Supreme Court that it is not open for a person to make refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. On the contrary, there are direct decisions of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the present special civil applications in nutshell are as under: 2.1. That the petitioner herein - M/s. EI Dupont India Pvt. Ltd. (hereinafter referred to as claimant ) holding central excise registration, re-submitted the refund claims in respect of CENVAT credit on inputs used in the manufacture of their product which were cleared under Rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the Rules ). That the adjudicating authority was of the opinion that since the claimant has not physically exported the goods but merely supplied the goods to 100% EOU , the provision of Rule 5 of the Rules are not applicable and therefore, there are not entitled for refund of CENVAT credit under Rule 5 and therefore, the claims were liable to be rejected under Rule 5 of the Rules. The adjudicating authority served a show-cause notice upon the claimant and the claimant was directed to show cause why the refund claim should not be rejected under the Rules. 2.2. That the claimant challenged the said show cause notices before this Court by way of Special Civil Application No.10220 /2013 and other allied petitions and this Court disposed of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holds the field is binding upon the respondent No.4 . It is submitted that the said binding decision of the jurisdiction of the High Court is binding upon the respondent No.4 . It is submitted that merely because the decision in the case of NBM Industries, though directly on the point, is in the case of another assessee , is no ground by the respondent No.4 adjudicating authority not to follow the same. 3.2. It is further submitted that the respondent No.4 adjudicating authority has materially erred in not relying upon the decision of this Court in the case of NBM Industries (Supra) and in observing that as the decision in the case of NBM Industries (Supra) is in case of another assessee , it cannot be accepted as a rule. It is further submitted by Shri Soparkar , learned counsel appearing on behalf of the petitioner - claimant that the respondent No.4 adjudicating authority has erred in holding that as the decision in the case of NBM Industries (Supra) is in the case of another assessee and not in the case of the claimant, the same cannot be relied upon by the claimant. 3.3. It is further submitted by Shri Soparkar , learned counsel appearing on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities/Tribunals in the State. It is further submitted that it is also further observed by the Hon'ble Supreme Court in the said decision that if inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in S.2 ( b) of the Contempt of Courts Act, 1971. 3.7. Shri Soparkar , learned counsel appearing on behalf of the petitioner has submitted that the impugned orders passed by the respondent No.4 - adjudicating authority is required to be considered from another angle also. It is submitted that if the observations made by the adjudicating authority made in the impugned order that an assessee cannot claim refund of any duty on the basis of a favorable appellate judgment in case of any assessee , and that the assessee must succeed or fail in his own proceedings and that the decision in case of another assessee cannot be accepted as a ruling [binding ruling], in that case it will lead to multiplici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that as such there is a direct binding decision of this Court in the case of NBM Industries (Supra) which is in favour of the assessee holding that on inputs used in manufacture of goods cleared by TDA units to 100% EOU refund of CENVAT credit would be available to the assessee and it would not be denied on the ground that it was the case of deemed export and refund could be granted only in case of physical export. It is also required to be noted that in the said decision the revenue pressed into service the decision of the Madras High Court in the case of BAPL Industries Ltd. (Supra) [which has been relied upon by the adjudicating authority in the present case] and the Division Bench after considering the said decision held as stated hereinabove. Despite the decision of this Court in the case of NBM Industries (Supra) was pressed into service by the claimant and was pointed out to the adjudicating authority, which is a binding decision upon adjudicating authority, the adjudicating authority has not followed the said decision solely on the ground that the said decision is not in the case of assessee but is in the case of another assessee and the adjudicating authority has furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same by holding that it is not binding ruling as the same is in case of another assessee . It appears that the respondent No.4 has not properly understood the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (Supra). In the case of Mafatlal Industries Ltd. (Supra), the Hon'ble Supreme Court has never held that a decision of the higher appellate authorities/courts which may be in the case of another assessee are not binding to the lower authorities, on the ground that the same is in the case of another assessee . It is also not held by the Hon'ble Supreme Court that it is not open for a person to make refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. On the contrary, there are direct decisions of the Hon'ble Supreme Court as well as various High Courts. [5.2] In the case of Kamlakshi Finance Corporation Ltd. (Supra), in paras 7 to 10, the Hon'ble Supreme Court has held and observed as under: 7. Having heard learned Counsel for the parties, we are of the opinion that the approach adopted by the Adjudicating Authority was wholly impermissible in law. At the outset, we may re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6... It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasijudicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities . The mere fact that the order of the appellate authority is not acceptable to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision dated 21.6.2010. It would be open for the Department to call in question such a view in appropriate proceedings as in the manner permissible to the Department. Petition is disposed of accordingly. 5.3. In the case of Legrand (India) Pvt. Ltd. (Supra), the Bombay High Court has held as under: (a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State ; (b) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding; (c) If inspite of the earlier expositiion of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the case of BAPL Industries Ltd. (Supra), which was as such considered by this Court while passing the order in the case of NBM Industries (Supra). We strongly disapprove the observation made by the adjudicating authority that the decision of this Court in the case of NBM Industries (Supra) is not a ruling as it is in the case of another assessee . The decision of this court in the case of NBM Industries (Supra) though may be in the case of another assessee is binding to respondent No.4 . Under the circumstances, despite the alternative remedy available to the petitioner, we have to interfere with the impugned orders in exercise of powers under Article 226 of the Constitution of India. 5.5. As such by not following the binding decision of this Court in the case of NBM Industries (Supra), the respondent No.4 - adjudicating authority has rendered herself liable for the prosecution/proceedings under the Contempt of Courts Act. Identical question came to be considered by the Division Bench of this Court in the case of the Secretary, Labour , Social Welfare Tribal Development Dept., Sachivalaya , Gandhinagar and Anr . (Supra) and considering the observations made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter following the law laid down by this Court in the case of NBM Industries (Supra) and pass fresh orders within a period of two months from the date of the receipt of the present order and to make the actual payment within a period of four weeks thereafter and also grant consequential reliefs which may be available to the petitioners under the relevant provision of the rules more particularly Rule 5 of the Rules. 6.1. Before parting with the present order, we are constrained to strongly disapprove such arbitrary act on the part of the lower adjudicating authority and/or lower authorities in ignoring the binding decisions/orders passed by the higher appellate authorities/courts. Time and again the Hon'ble Supreme Court as well as various High Courts and this Court have disapproved such conduct/act on the part of the lower authorities in ignoring the binding decisions/orders passed by the higher appellate authorities/courts. Still it appears that message has not reached the concerned authorities. In the recent decision in the case of Claris Lifesciences Ltd. (Supra) in para 26 this Court has observed as under: 26. Despite such clear and specific directions and author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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