TMI Blog2004 (3) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... nts have two manufacturing units at two separate premises, one unit in Village : Dahali, Tal : Mouda, District : Nagpur and another unit located at Rahadi Village, Tal : Mouda, District : Nagpur. In the unit at Village : Dahali, the appellants undertake the manufacture of Polyester Chips and Partially Oriented Yarn (POY). This unit is registered with the Central Excise Authorities vide Registration No. 01/Ch. 39 and 54/RM/92, dated 26-6-1992. At Village : Rahadi, the appellants have a Texturising Division where they undertake the manufacture of Synthetic Filament Yarn, which is textured, twisted or drawn, which products fall for classification under Central Excise Tariff Headings - 5402.32, 5402.43 and 5505.10. This Texturising Division has been registered as a Manufacturing Unit under Rules 174 and 102 of the Central Excise Rules, 1944 (the Rules in short) as a Manufacturing Unit vide Registration No. 02/Ch. 54/RM/TexDn/2000, dated 21-3-2000. 2. Prior to 1996 Before 1996, the present Texturising Unit was a unit of a district and separate entity viz. M/s. Deccan Polypack Ltd., which was registered independently with Excise Authorities vide Registration No. 9/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hadi. The Registration Certificate, inter alia , states that : This Certificate shall remain valid till the holder "5. carried on the activity for which a Certificate has been issued or surrenders the Certificate whichever is earlier." 8. 14-7-1998 Consequently, the Asstt. Commissioner, Dvn. Bhandara passed an order-in-original dated 14-7-1998 holding that as the Appellants had applied for registration and accordingly, it had been issued by the Superintendent on 1-1-1998, there remains no ground for any further action. 9. 18-11-1998 Against the above referred order-in-original dated 14-7-1998, the Appellant filed an appeal before the Commissioner of Central Excise (Appeals), who vide Order-in-Appeal dated 18-11-1998 held that the Appellants require only a single registration for both the units. 10. 27-11-1998 Consequent to the above order-in-appeal, the Appellants vide their letter dated 27-11-1998 applied for single registration and the same was granted by the Range Superintendent on 24-12-1998. 11. 7-2-2000 A Central Excise audit was conducted by the audit party between 17-2-2000 to 24-2-2000 headed by Joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. 13-2-2001 The Deputy Commissioner of Central Excise also issued Show Cause Notices No. C. No. V(54)5/2/CL/98/450 and V(54)5/2/CL/98/912, dated 13-2-2001 and 15-3-2001 respectively calling upon the Appellants to show cause why the benefit of duty exemption under Notification No. 6/2000, dated 1-3-2000 should not be denied and duty at the effective rate i.e. 16% BED, 16% SPL and 15% additional on BED plus SPL should not be charged. 19. 2-4-2001 The Show Cause Notice No. C. No. V (54)3-31/2000/D/1063, dated 2-4-2001 calling upon the Appellants to show cause as to why the benefit of Notification No. 6/2000-C.E., dated 1-3-2000 should not be denied to the Polyester Textured Yarn manufactured by the Appellants. The Appellants were also asked to show cause as to why additional duty of Rs. 15,27,31,631/- should not be recovered for the period 22-3-2000 to 28-3-2001 under Section 11A of the Central Excise Act, 1944 (the Act). The Appellants were also asked to show cause against imposition of penalty under Rule 173Q of the Rules and payment of interest under Section 11AA of the Act. 20. The Appellants filed their composite reply in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act before the Commissioner (Appeals). 25. 15-1-2002 The stay applications filed in the said 3 appeals pending before the Commissioner (Appeals) were disposed of by a common Order F. Nos. No. V2(54)72/NAG of 2001, No. V2(54)73/NAG of 2001 and No. V2(54)74/NAG of 2001/1386, dated 15-1-2002. The Hon'ble Commissioner (Appeals) came to a prima facie finding that cancellation of separate Central Excise registrations to units situated at Dahali and Rahadi; disallowing the benefit of Notification No. 6/2000-C.E., dated 1-3-2000 appears to be legal, proper and correct. The learned Commissioner had held that the confirmation of demand of Rs. 15,27,31,631/- was made without taking into account the abatement of duty from the cum-duty price actually received as per the decision of the Hon'ble Supreme Court in the case of Govt. of India v. MRF as also in the case of Shreechakra Tyres Ltd. and further denying the benefit of Modvat credit to the tune of Rs. 11,07,62,050/- needed to be reconsidered to that extent. Accordingly, the learned Commissioner was of the prima facie view that details in this regard that the differential amount payable ac- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Units situated at Village : Dahali and Village : Rahadi, were one and the same, and required only one licence for the manufacture of their goods. He submits that though the above contention was raised by the appellants themselves before the Commissioner (Appeals), but there was no res judicata and the lower authority should have examined the issue afresh after taking into consideration the facts. He submits that the appellants were at liberty to contend that the two units were separate units and the earlier Order of the Commissioner (Appeals) holding the same to be one, would not act as an estoppel against their fresh contention. For the above proposition, he has referred to the various decisions which we shall be discussing in the subsequent paragraphs. 5. Sri R.K. Pardeshi, learned JDR for the Revenue, contended that it was the appellants' own case before the Commissioner (Appeals) that the two units were, in fact, one and the same, and required one licence only. The said contention of the appellants was accepted by the Commissioner (Appeals). The Order of the appellate authority was neither challenged by the appellants as it was in their favour, nor by the Revenue. As such, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat both the units were one and the same, and required only one registration. The litigation in respect of the above dispute travelled up to the Commissioner (Appeals) who vide his Order-in-Appeal, dated 18-11-98, accepted the appellants' contention and held that only one single registration for both the units was sufficient. While holding that, the Commissioner (Appeals) observed that it is the appellants' case that the land of the erstwhile M/s. Deccan Polyback Ltd., and M/s. DCL Polyesters Ltd., is in continuity, and therefore, grant of common licence with effect from 1-4-96 was in order. The appellants also referred to the clarification issued by C.B.E.C. vide their Circular No. 10/2/69-CX-6, dated 12-5-71, according to which different sections or departments of the same factory, if located in adjoining premises or in premises merely separated by a road or railway line or canal, both the places are known as forming part of the factory. While disposing of the appeal filed by the appellants, the Commissioner (Appeals) in his Order referred supra, held as under :- "6. Having considered the facts on record and the submission of the appellants, it is found that the SCN as also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the fact that two divisions were spread over a number of vast area running into Kms. was not known to the department. As a matter of fact, this aspect, apart from not being material at all for grant of registration, must have been examined at the time of inclusion of the item manufactured by erstwhile Deccan Polypack Ltd., in the registration already held by M/s. DCL Polyesters Ltd. Similarly, the insistence that there should be two separate registrations for the two divisions as they manufacture different items under the Central Excise Tariff speaks of ignorance on the part of officials. As has correctly been pointed out by the appellants, there are any number of factories manufacturing different items under a single registration. If at all it is held that the two divisions should have separate registration for the above reasons, it is the Range Officer who earlier allowed the appellants to work under a common registration should have been responsible and reprimanded for having violated the provisions of Rules, if any, and not the appellants because the appellants did not issue the registration themselves without the knowledge of the Central Excise Officials who, moreover, opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed the fact that the earlier Order-in-Appeal passed by the Commissioner (Appeals) holding the two units to be as one, was at their behest, and the appellants continued to enjoy the status of one unit on the basis of the above order, till the Notifications in question were issued in the Budget of 2000, dated 29-2-2000. From that date, the appellants took a U-turn and started claiming the two units to be separate units with an eye on the Notifications in question. The appellants' contention duly represented by the learned Advocate is that there is no estoppel in the eyes of law and the appellants were at liberty to take a diametrically opposite stand in the subsequent proceedings, and the authorities below instead of relying upon the earlier order of the Commissioner (Appeals) should have decided the issue afresh. However, we do not find any merits in the above contention of the learned Sr. Counsel. It was the appellants' own case before the Commissioner (Appeals) that the two units are one and the same and a single registration would suffice. The order of the Commissioner (Appeals) was not appealed against and has attained finality. The same was binding upon the Revenue as als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants are precluded from now taking a diametrically opposite stand in the subsequent proceedings, especially when it was the appellants themselves who in the initial proceedings contended that both the units were one and the same, and required one licence. 12. Shri J.J. Bhatt, learned Sr. Counsel for the appellants, has drawn our attention to the Hon'ble Supreme Court's decision in the case of Commissioner of Income Tax, West Bengal v. Brijlal Lohia and Mahabir Prasad Khemka, Executors of Late Kanailal Lohia reported in 1972-4-Supreme Court Cases 432, laying down that the earlier decision of the Appellate Tribunal as regards gifts made to brother and nephew not being genuine, can be subsequently reversed, while dealing with assessments of the subsequent years, and on a consideration of considerable additional evidence. However, we find that the ratio of the above decision is not applicable inasmuch as firstly it was the appellants' own stand before the Commissioner (Appeals) which was accepted by him, and secondly, there was no change in the facts of the case and the location of the two units remained the same. In the above referred case, the Hon'ble Supreme Court has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ratio of the said decision is not applicable to the present cases also. For the same reason, the Gujarat High Court's decision in the case of Anant Mills Ltd. v. Commissioner of Income-tax reported in Vol. 206 : ITR 582, will not apply. The Hon'ble High Court in the said decision has held that the doctrine of estoppel does not apply to the case of successive assessments. It applies only to the same assessment. In other words, the assessee will be bound by his earlier representation of fact and will not be allowed to go back on it at a subsequent stage of the same assessment. However, the representation made by him or the stand taken by him in an earlier assessment would not necessarily bind him in a subsequent assessment. The assessment is complete in itself and neither the assessee nor the Revenue should be directly bound by the stand taken by them in the earlier assessment. As already observed, there is no system of yearly assessment in the Central Excise Law as is the system in the Income Tax Law. The fact that whether in the present cases, the two units were one or two separate units, is not required to be considered afresh with the start of every financial year. It is a que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tribunal giving the second decision, would it still be open to the second Tribunal to come to a contrary conclusion? Two or three different positions may arise. The first Tribunal may come to a particular decision on construction of a particular document. Take this very case. The partnership deed referred to played an important part in the decision arrived at by both the Tribunals. If the first Tribunal took a particular view as to the construction of that document, would it be open to the second Tribunal, without more, to come to a different conclusion on the construction of that document? In our opinion it would not be open to the second Tribunal to disturb the decision given by the first Tribunal because we must bear in mind that the construction of the partnership deed is not a matter of computation or a matter of reckoning which may alter from year to year or from assessment to assessment. The partnership deed is the very basis of the decision as to whether Hiralal is a partner in his own right or is a trustee for Vasantlal, then it is a decision with regard to the construction of the partnership deed and is a decision which is bound to affect not only that particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res judicata may not apply, even though there may be no estoppel by record, it is very desirable that there should be finality and certainty in all litigations including litigations arising out of the Income-tax Act. It is not a very satisfactory thing that an assessee should feel a grievance that one Tribunal came to one conclusion and another Tribunal came to a different conclusion and that the two conclusions are entirely inconsistent with one another. Therefore, the second Tribunal must be satisfied that the circumstances such as to justify it in departing from the ordinary principles which apply to all Tribunals to try and give as far as possible to finality and a conclusiveness to the decision arrived at........" As observed by the Hon'ble Bombay High Court in the above case, the Tribunal should be slow to depart from an earlier finding of the authorities and the judicial discipline requires the earlier orders which have attained finality to be followed too, unless it can be said that the same are arbitrary or perverse or there are some additional circumstances which were not considered by the earlier decision giving authority. This is not the case in the present matter. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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