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2015 (7) TMI 1112 - GUJARAT HIGH COURT

2015 (7) TMI 1112 - GUJARAT HIGH COURT - 2016 (336) E.L.T. 612 (Guj.) - Challenge to the show cause notice - demand of education cess and secondary and higher education cess on duty payable in respect of DTA clearance of goods - binding precedence of earlier decisions of the tribunal on the lower authorities in the subsequent proceedings - Held that:- the view of the higher authority or the Tribunal can be further carried to the High Court or Supreme Court and for that adjudicating authority is .....

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that after adjudicating authority passes an order as per the decision of the learned Tribunal, the matter can be further carried to the Tribunal 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 af .....

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ON 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.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in this group of petitions, they are disposed of by this common judgment and order. 2.0. In all these petitions respective p .....

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panies. 2.1. The respective petitioners have also challenged the impugned show cause notices, the particulars of which are given in 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 Excise Act, 1944 r/w Section 93 of the Finance (No.2) Act, 2004 and Section 138 of the F .....

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that in the past similar show cause notices have been issued, the same have been set aside by the Division Bench of this Court on the ground that once the issue is concluded by the decision of the Tribunal in favour of the assessee thereafter it is not open for the department to reagitate the same question. 3.0. Shri Dave, learned advocate for the respective petitioners has heavily relied upon the decision of this Court in the case of Claris Lifesciences Limited vs. Union of India reported in 20 .....

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refore, 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 Sp .....

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wever the Hon'ble Supreme Court dismissed the appeal/ SLP on the ground of limitation. It is submitted that therefore, in the subsequent proceedings, it will always be open for the department to challenge the decision before the Hon'ble Supreme Court. 4.1. It is further submitted by Shri Ravani, learned advocate for the department that in view of the above and to keep the issue alive, the department is required to issue show cause notice so that ultimately matter can be carried to the Ho .....

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efore, to keep the issue alive and so as to see that ultimately department can approach the Hon'ble Supreme Court, when the department has issued the show cause notice, it cannot be said that the authority has committed any error and / or illegality in issuing the impugned show cause notices. 4.2. It is further submitted by Shri Ravani, learned advocate for the department that even in the earlier decision in the case of Claris Lifesciences Limited (supra) even the Division Bench had specific .....

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ate proceedings as in the manner permissible to the Department. Therefore, it is requested to dismiss the present petitions. However, Shri Ravani, learned advocate for the department / Adjudicating Authority has fairly conceded that so far as adjudicating authority is concerned, as 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 departme .....

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lated 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 Excise Act, 1944 r/w Sec .....

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2010 is binding to the adjudicating authority. On the other hand, it is the case of the department that as such department does not accept the decision of the learned Tribunal dated 21.06.2010 and as such department did challenge the decision of the Tribunal before the Hon'ble Supreme Court, however the department lost before the Hon'ble Supreme Court solely on the ground of limitation. Therefore, it is the case on behalf of the department that only with a view to keep the issue alive so .....

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under: 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 judi .....

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nd 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 proprie .....

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out of the decision or or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the department. The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue,the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. I .....

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he Board or the Collector so as to enable appropriate proceedings being taken under S.35E(1) or (2) to keep the interests of the department alive. If the officers view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail. 8.0. However, the view of the higher authority or the Tribunal can be further carried to the High Court or Supreme Court and for that adjudicating authority is required to issue show .....

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