ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 138/2005 (H-I) CE dated 24.12.2005 by which the demands have been confirmed on the ground that the appellants have manufactured FELT and the same is not marketable and the plea of the appellants is that the intermediate product is not FELT but ‘first punch web’ and is not goods, as the same is not marketable, has been rejected.
2. Appellant’s contention is that on this very issue for the previous period 1.3.1997 to 28.3.1999, four show cause notices were issued by Order Original dated 13.5.1999 in Order-in-Original No. 20/99 and three other orders, wherein the appellant’s contention was accepted and demands were dropped by the Original Authority. The Revenue appealed before the Commissioner (A) by his Order No. 3 to 6/2003 CE dated 28.2.2003, the Revenue appeals were rejected. The Revenue took up the matter before the Tribunal and the Tribunal did not find any merit in the Revenue appeals and the same was rejected as reported in 2005 (180) ELT 348 (Tri.-Bang.). Therefore, the appellants contended that the issue is totally in their favour and the Revenue also did not contest the matter further before the Apex Court. It is their submission that the Original Authority has not taken these submissions into consideration, thereby he has committed judicial indiscipline in overlooking the previous orders passed in assessee’s favour.
3. Heard learned Counsel who relied on the following rulings. The gist of the orders and rulings are reproduced herein below.
Sl. No.
Case Laws
Gist of
Decision
1.
CCE v. Suntract Electronics (P) Ltd.
When
similar order not appealed against by revenue, then appeal in the present
case not to be entertained.
2.
Jayaswals Neco Ltd. v. CCE 2006 (73) RLT 230
(SC)
When
the Department have accepted a principle laid down in earlier case cannot be
permitted to take different stand than the principles laid down in the
earlier case.
3.
CIT v. Shivsagar Estate
The
Departmental appeals against High Court decision for the subsequent years was
dismissed on the ground that no appeals were filed by the Department before
the Supreme Court for the earlier year.
4.
UOI v. Satish Panalal Shah
IT is
not open to the Revenue to accept the earlier judgment in the case of one
assessee and challenge its correctness without just cause in the case of
other assessees
5.
TIG-LIG Ltd. and Ors. v. CC 2005 (71) RLT 13 (T)
It was
held that there should be certain amount of certainty in taxation law and
once Revenue accepted the decision of the Tribunal and it has taken similar
view in several cases, position should not get disturbed by taking a contrary
view.
6.
Birla Corporation Ltd. v. CCE 2005 (186) ELT 266
(SC)
When
question arising for consideration and facts are almost identical to previous
case, revenue cannot be allowed to take a different stand.
7.
CCE v. Indian Ispat works (P) Ltd. and Ors.
2006 (74) RLT 254 (T)
When
the amount paid was not tax, limitation for claiming refund prescribed in
Section 11B is not applicable.
4. The learned JDR reiterated the departmental view.
5. On a careful consideration, it is seen that the demands raised against the assessee in respect of the disputed product was dropped by the Original Authority for the previous periods in Order-in-Original No. 20/99 and similar three orders. The Revenue appeals were rejected by Commissioner (A) in his Orders-in-Appeal Nos. 3 to 6/2003 CE dated 28.2.2003. The Tribunal also rejected the Revenue appeal. Thus, it is seen that the issue has been fully settled in assessee’s favour, inasmuch as their plea that there was no emergence of FELT for excisability purpose and what emerged was also “first punch web” was accepted. In a circumstance like this, the authorities were not justified to recommence the proceedings and confirm demands. The same is totally without jurisdiction and a clear case of judicial indiscipline. Once the issue has been settled by the Tribunal’s ruling and the same has not been challenged before the Apex Court, then it is not open for the Revenue to re-adjudicate the matter once again. In terms of the above cited judgments, there is no merit in the impugned order and the same is set aside by allowing the appeal with consequential relief, if any.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)