ORDER
Archana Wadhwa, Member (J)
1. The prayer in the application is for dispensing with the condition of pre-deposit of amount of Rs. 23,85,227/- and penalty of Rs. 10 lakhs imposed upon M/s. Gujarat Composite Ltd., and Rs. 5 lakhs imposed on Shri S.K. Mishra, Senior Manager of the Company under the provisions of Rule 209A read with provisions of Rule 173Q.
2. After hearing both sides, duly represented by Shri Uday Joshi, Ld. Advocate, appearing for the appellants and Shri S.S. Bhagat, Ld. SDR, appearing for the revenue, we find that the matter had earlier came up before the Tribunal when the same was remanded vide order No. A-12/KOL/2003, dated 16-1-2003 by taking note of the disputed issue relating to the reversal of Modvat credit of duty in respect of inputs lying in stock when the final product manufactured by the appellants became exempted and by taking note of the Larger Bench’s decision of the Tribunal in the case of Commissioner of Central Excise, Rajkot v. Ashok Iron & Steel Fabricators reported in 2002 (140) E.L.T. 277 (Tri.- LB), the matter was remanded to examine the applicability of the said Larger Bench’s decision to the facts and circumstances of the present case. It is seen that the demand was subsequently again confirmed by the original adjudicating authority and the matter was posted before the Tribunal. The Tribunal vide its order No. S-353/A-446/Kol/2004, dated 12-7-2004, again remanded the matter to the Commissioner with directions to re-decide the issue in the light of the Larger Bench’s decision. The present impugned order is passed in de novo proceedings by the Commissioner.
3. We have gone through the impugned order passed by the Commissioner and are pained to take note of certain observations made by the Commissioner, which we are reproducing below :-
From the view that the Tribunal had consistently been taking in their decisions as distinguishable from that of Premier Tyres case and Ashok Iron & Steel case, as discussed above, it needs no reiteration that the Rules governing Modvat credit scheme never, since its inception, ever intended even impliedly or remotely to allow the manufacturers to enrich themselves by way of utilizing Modvat credit involved on those inputs which were not utilized in the manufacture of such final products that did not burnt the burden of central excise duty by way of actual payment. Consequently, with due respects and regards, I must concede that on both the occasions, the CEGAT lost sight of the moot point of the issue, viz., that the position as available in the Ashok Iron & Steel case that there was no provisions under the Rules for reversal of credit, was no longer relevant to this case. The law laid down In these cases is no longer res judicata in view of the contrary view taken by the Tribunal in their other decisions as mentioned above which are as per provisions of enacted rules and codified law. As already discussed by me above, this case relate to the period June, 1998 when there was an express provision under the Modvat rules for reversal of credit when final products were exempt. It, therefore, appears to me that the Hon’ble Tribunal in the first instance ought to have given a specific ruling on the party’s appeal instead of mechanically remanding the case back to the adjudicating authority not once rather at two occasions for the limited purpose of examining applicability of the decision as rendered by larger bench of the Tribunal in the Ashok Iron & Steel case to the facts of the present case. The Hon’ble Tribunal ought to have answered as to why the ratio of 5 Hon’ble Member bench decision is preferable for extending to facts and circumstances of one case when the adjudicating Commissioner had also referred and relied on other ratio of a case where decision was rendered by other bench of Tribunal consisting of not less than 5 Hon’ble Members. If the adjudicating Commissioner have referred and recorded about Asliok Iron & Steel case as referred in paragraph 23 above, at both occasion when he passed order in original, I fail to appreciate the logic of the Hon’ble Tribunal of Kolkatta bench, remanding the case once again i.e., to consider “Ashok Iron” case ratio third time. If the Hon’ble Tribunal was so sure and confident of applicability of ratio of that case to the present proceeding, then appeal of the party ought to have been fully allowed instead of remanding the case another round. Otherwise justice delayed was justice denied in this case. I have also not found it palatable as why a unit manufacturing goods at Ahmedabad should approach to the Hon’ble bench to Tribunal at Kolkatta repeatedly.
The adjudicating authority has observed that while remanding the matter, the Tribunal lost sight of the moot point and has acted mechanically in remanding the matter. He has also expressed his views as to how the ratio of five Members Bench’s decision of the Tribunal is to be preferred when the Assistant Commissioner had referred to other decisions rendered by the Tribunal. Doubts expressed as to why a unit situated at Ahmedabad, approached the Tribunal at Kolkatta repeatedly amount to an innuendo totally uncalled for.
4. We find that Shri B.R. Tripathi, Ld. Commissioner adjudicating the matter, appears to be under a belief that he is sitting in appeal over the judgment of the Tribunal and, as such, has powers and jurisdiction to comment upon the same. Shri Tripathi seems to have forgotten that as a lower adjudicating authority, he is bound by the directions of the Tribunal. If there was any grievance against the Tribunal’s order, the proper course of action was to challenge the same before the higher appellate forum instead of commenting upon the correctness or otherwise of the same. As an adjudicating authority he should have known that the Larger Bench’s decision of the Tribunal consisting of five Members is to be preferred over other decisions of the Tribunal. The matter was sent back to him only with the directions to examine the applicability of the said decision and not to judge the correctness or otherwise of the same. His comments about the appellant’s filing an appeal before the Kolkatta Bench, only reflects upon the lack of knowledge on his part, inasmuch as he should be aware that the Tribunal, vide a Public Notice had allowed the assessee to file an appeal before a Bench under the jurisdiction of which the assessee has its Head Office or Principal Office. It goes without saying that such a retention of appeal before its original Bench must have been asked for by the appellants and the Bench must have exercised its jurisdiction in terms of the Tribunal’s public notice. The Commissioner should have exercised restrain in making such comments casting doubts over the appellant’s approaching Eastern Bench of the Tribunal without any reason and without verifying the factual position. He needs to know that department is represented, by a departmental representative before the Tribunal, who was within his rights to take any such objection about lack of jurisdiction of the Bench. It is not for the Commissioner to object to passing of order by the Bench, while deciding the case in de novo proceedings. Such a conduct of an adjudicating authority, at the level of a Commissioner, who must have served in the department for quite a number of years, is not at all called for. It reflects upon his immaturity as regards judicial knowledge and judicial discipline is concerned. We would like to send a copy of this order to the concerned Chief Commissioner as also to the Central Board of Excise & Customs to take note of the displeasure expressed by us and initiate suitable action against the said Commissioner, which should serve as deterrent to others and reformative to the individual.
5. As regards the merit of the case, we find that the issue is covered by the Larger Bench’s decision of the Tribunal in the case of Ashok Iron & Steel Fabricators referred above. We accordingly allow the stay application unconditionally.
(Dictated in Court)