TMI Blog2015 (7) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... al and the learned Member of the Tribunal either may take the same view and / or may refer to the Larger Bench. If the learned Tribunal takes the same view, in that case, it will always be open for the Department to carry the matter further to the Higher Court and in such proceedings the view of the Tribunal can be tested and / or considered. The aforesaid can be said to be permitting the department to call in question the view of the Tribunal in appropriate proceedings as in the manner permissible to the department. However, for the aforesaid purpose, the department / adjudicating authority is required to issue show cause notice, may be for the aforesaid limited purpose and to keep the issue alive. No relief to the petitioner - Decided against the petitioner. - SPECIAL CIVIL APPLICATION NO. 11987 of 2014 With SPECIAL CIVIL APPLICATION NO. 12228 of 2014 With SPECIAL CIVIL APPLICATION NO. 12229 of 2014 - - - Dated:- 17-7-2015 - MR. M.R. SHAH AND MS SONIA GOKANI, JJ MR PARESH M DAVE, ADVOCATE for the Petitioner(s) No. 1 2 MR YN RAVANI, ADVOCATE for the Respondent(s) No. 2 RULE SERVED for the Respondent(s) No. 1 2 JUDGMENT (PER : HONOURABLE MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar show cause notices issued by the department have been set aside by the Division Bench of this Court. 3.1. It is vehemently submitted by Shri Dave, learned advocate for the respective petitioners that as such authority who has issued the show cause notice is subordinate to the learned Tribunal and therefore, even if the show cause notices are adjudicated upon; the adjudicating authority is bound to obey and follow the decision of the Tribunal and cannot take a contrary view than the view taken by the learned Tribunal. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Union of India vs. Kamlakshi Finance Corporation Ltd reported in 1991(55) ELT 433 (SC). Making above submissions, it is requested to allow the present Special Civil Applications. 4.0. Shri Y.N.Ravani, learned advocate has appeared on behalf of the department. It is submitted that as such the department and the Central Government does not accept the correctness of the view of the Tribunal, and wishes to carry the matter further. It is submitted that as such against the decision of the learned Tribunal, upon which, reliance has been pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on today unless and until contrary view is taken by the Higher Forum / Court, the decision of the Tribunal is binding to the adjudicating authority. However, according to Shri Ravani, learned advocate for the department impugned show cause notices are issued to keep the issue alive so that the matter can be carried to the Hon'ble Supreme Court and the decision of the Tribunal upon which, much reliance has been placed by the petitioner can be tested by the Hon'ble Supreme Court. 5.0. In reply to the aforesaid, Shri Paresh Dave, learned advocate for the petitioner in the alternative, has requested to direct the adjudicating authority to adjudicate the show cause notices at the earliest and within stipulated time. 6.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that in all these petitions respective petitioners have challenged the respective show cause notices, by which, the respective petitioners are called upon to show cause why the short payment of education cess and secondary and higher education cess should not be demanded and recovered from them under the provisions of Section 11A (1) of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 assessees 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 subsection( 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 subsection( 2) the Collector of Central Excise,when he comes across any order passed by an authority subordinate to him, if not satisfied with its legality or propriety, may direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or or order as may be specified by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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