TMI Blog2021 (8) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... rary stand in the other pending appeals - In Popular Carbonic, a Division Bench of the Tribunal examined the contention raised on behalf of the appellant that since the order attained finality, the Department cannot be permitted to contend that the activity undertaken by the appellant would amount to manufacture. The submission made on behalf the appellant was accepted. The order passed by the Assistant Commissioner has attained finality, the Department cannot take a contrary view in this appeal. The confirmation of demand by the Commissioner cannot be sustained and is set aside - Appeal allowed. - EXCISE APPEAL NO. 52327 OF 2016 - FINAL ORDER NO. 51744/2021 - Dated:- 11-8-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri B.L. Narasimhan Shri Dhruv Tiwari, Advocates for the Appellant Shri Rakesh Agarwal, Authorized Representative for the Department ORDER This appeal seeks the quashing of the order dated 18.05.2016 passed by the Commissioner, Central Excise and Service Tax, Large Taxpayer Unit, New Delhi [ the Commissioner ], by which the demand proposed in the four show cause notices has been confirmed with penalty and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but extended arm of the appellant, four show cause notices dated 21.02.2014, 08.10.2014, 27.04.2015 and 17.11.2015 for the period from February 2009 to August 2013, September 2013 to March 2014, April 2014 to October 2014 and November 2014 to August 2015 respectively were issued to the appellant proposing to demand Central Excise duty aggregating to ₹ 7,34,80,654/- with interest and penalty. The appellant filed detailed replies to the show cause notices denying the allegations but the Commissioner, by a common order dated 18.05.2016, confirmed the demand with interest and penalty. 7. This appeal has, accordingly, being filed to assail the said order of the Commissioner. The appellant also filed a Miscellaneous Application for urging an additional ground in the appeal. This Application has been allowed by order of date. 8. Shri B.L. Narasimhan and Shri Dhruv Tiwari learned counsel for the appellant submitted that the appeal deserves to be allowed for the sole reason that for the subsequent periods from September 2015 to January 2017 and February 2017 to June 2017, the Department issued two Statements of Demand dated 15.06.2017 and 10.04.2018 respectively under section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation Act. Learned counsel, therefore, submitted that the Department cannot be permitted to take a contrary stand in the present appeal and in support of this contention placed reliance upon the following decisions: i. Popular Carbonic Pvt. Ltd. vs. Commissioner of Central Excise, Chennai-I [ 2021 (8) TMI 240- CESTAT CHENNAI ]; ii. Rosmerta Technologies Ltd. vs. Commissioner of CE ST, LTU, Delhi [ 2019(11) TMI 1573- CESTAT CHANDIGARH ]; and iii. Mohak Hi Tech Specialty Hospital vs. Principal Commissioner of Central Excise, Customs and Service Tax, Indore, M.P. [ 2020 (11) TMI 152 CESTAT NEW DELHI ] 10. Shri Rakesh Agarwal learned Authorized Representative appearing for the Department, however, submitted that since the order dated 31.05.2018 for the subsequent period in the case of the appellant was passed by the Assistant Commissioner, the Tribunal should ignore this order and be guided by the earlier order dated 18.05.2016 which was passed by the Commissioner. Learned Authorized Representative also stated that even after noticing the fact stated by the appellant that the Commissioner had earlier passed an order on 18.05.2016 on the same issue, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that service tax cannot be levied, which order had attained finality, the Department cannot be permitted to take a stand that service tax is leviable. The relevant portion of the decision is reproduced below: 16. Learned Counsel for the Appellant, on instructions, has stated that the aforesaid order dated 31 December, 2015 of the Commissioner has also attained finality as the Department did not file any Appeal. 17. The submission of the learned Counsel for the Appellant is that in such circumstances, the Department cannot agitate that the Appellant is liable to pay Service Tax under BAS. To support this contention, learned Counsel has placed reliance upon a decision of Allahabad Bench of this Tribunal in Shri Niraj Prasad vs. CCE ST, Kanpur [Service Tax Appeal No. 3834 of 2012] decided on 17 July, 2019. In the aforesaid case, it was sought to be submitted by the Appellant that the Department cannot be allowed to discriminate between various assesses on the same issues. A view was taken that the centres of the Appellant would not be required to pay Service Tax under BAS, if Service Tax had been paid on the entire amount by the agency. This submission was made in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. 4. It is difficult to understand the reasoning of the Tribunal. The least that the Tribunal could have done in the interest of uniformity was to call upon the Revenue Authorities to explain why they were making a distinction between the Appellants product and that of M/s. Chandulal K. Patel without subjecting the Appellants product to any chemical analysis. 5. In their Appeal from the decision of the Tribunal before us the Appellants have again raised the issue that the Tribunal should have considered the fact that the Appellants and Chandulal K. Patel Co s products were identical and were the outcome of an identical process, and that since the latter had been exempted from paying any central excise duty on the ground that their product was classifiable under Tariff Heading 24.04, the Appellants should get the same benefit. 6. At the hearing today we sought an explanation from the learned Counsel appearing on behalf of the Revenue Authorities as to why different stand had been taken in the cases of M/s. Chandulal K. Patel Company and the Appellant. Since the matter had not been squarely dealt with on facts at any stage by any of the authorities below, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) E.L.T. 266 (S.C.)], Jayaswals Neco Ltd. v. CCE, Nagpur [2006 (195) E.L.T. 142 (S.C.)] etc.] 15. The point in issue being concluded by the decision of this Court in MRF case (supra) and the fact that the Revenue did not file an appeal against the order of the Tribunal in ICI India case (supra), we do not find any merit in these appeals and dismiss the same with no order as to costs. 16. In Mohak Hi Tech Specialty Hospital, after placing reliance upon the decision of the Supreme Court in Damodar J. Malpani vs. Collector of Central Excise [2002 (146) E.L.T. 483 (S.C.) ] and the Division Bench decision of the Tribunal in Niraj Prasad vs. Commissioner of Central Excise and Service Tax, Kanpur [2019-TIOL-3237-CESTAT-ALL ], a Division Bench of Tribunal also observed that since the Department had accepted the findings of the Additional Commissioner in the order dated 22.02.2016, which order had attained finality, it was not open to the Department to take a contrary view. In coming to this conclusion the Tribunal relied upon the following decisions: i . Ujagar Prints vs. UOI [1988 (38) E.L.T. 535 S.C ] ii. M/s. Mahendra Metal Works vs. CCE, Bombay II [2002 (141) E.L.T 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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