ORDER
Harish Chander, Vice President
1. M/s. Indian Metals and Ferro Alloys Ltd. has filed an appeal being aggrieved from order-in-original No. 2/Cus/EOU/BBSR/85, dated 10-5-1985 passed by Collector of Customs and Central Excise, Bhubaneswar. Shri K. Narasimhan, learned Advocate has appeared on behalf of the appellants. He pleaded that Indian Metals and Ferro Alloys Ltd. is a 100% export oriented unit at Theruvali District, Koraput for the manufacture of Charge Chrome, Ferro Silicon and Silicon Metal by following the scheme and procedure applicable to 100% export oriented undertakings announced by the Government of India, Ministry of Commerce vide Resolution No. 8 (15)78-EP, dated 31-12-1980. He further stated that the assessee had imported capital goods, raw materials, component parts and procured indigenous excisable goods by availing the exemption of duties of Customs in terms of Notification No. 13/Cus/81-C.E., dated 9-2-1981 and Central Excise duties under Notification No. 123/81-C.E., dated 2-6-1981. Shri K. Narasimhan, learned advocate pleaded that the period in dispute is 9-5-1983 to 20-5-1983 and the Revenue had issued the Show Cause Notice to show cause to the Collector vide first Show Cause Notice No. VIII(10)(2)-CUS/EOU/SBP/84/5098, dated 23-6-1984 for the removal of 180.814 MT of charge chrome for sale in the domestic area leaving 169.186 MT as sold at the rate of Rs. 3,500/- per MT after payment of Central Excise duty applicable to the Central Excise Tariff Item 68 shown as charge-chrome waste 150 MT on commercial grade and 169.186 MT was shown as charge chrome waste as on 1-8-1983 and out of above the appellants had exported 150 MT as charge chrome waste as on 1-8-1983 and out of above stock the assessee had exported charge chrome having mixed 60.75% of chromium contents. Shri K. Narasimhan, learned advocate argued that there were 6 more Show Cause Notices. Challenging the same issue a writ petition was filed before Orissa High Court vide writ petition No. OJC 1549/84 and Hon’ble Orissa High Court vide Order dated 4-7-1984 had quashed the Show Cause Notices and the Collector had withdrawn Show Cause Notices before the Hon’ble Orissa High Court on statement being made by the Revenue. The seven Show Cause Notices were withdrawn and the writ had become infructuous and there was instructions that no action on the notices withdrawn would further be taken. Shri K. Narasimhan, learned advocate stated that thereafter the Revenue authorities again issued a Show Cause Notice No. VIII (20)/2/CUS/EOU/SBP/84/Pt. 11/2183, dated 18-10-1984 and the same was adjudicated by the Collector vide Order dated 10-5-1985 which is the subject matter of appeal before the Tribunal. Shri K. Narasimhan argued that in view of the judgment of the Orissa High Court’s order in writ petition No. OJC 1549/84, dated 4-7-1984 no action on the notices withdrawn should be further taken by the revenue authorities. He pleaded that out of the 7 Show Cause Notices revenue authorities re-issued 4 Show Cause Notices and out of 4 Show Cause Notices one fresh Show Cause Notice was issued and adjudicated by the Collector which was the subject matter of the appeal before the Tribunal in appeal No. E/844/85-C and the Tribunal had disposed of the appeal vide order No. 917/87-C, dated 21-9-1987. The Tribunal had held that no fresh Show Cause Notice could be issued by the Revenue without seeking proper order from Orissa High Court and the Revenue being not satisfied with the order passed by the Tribunal had filed an appeal before the Supreme Court and the Hon’ble Supreme Court while upholding the finding of the Tribunal had held in Civil Appeal No. 2113 of 1988 vide Order dated 16-9-1989 as under :-
“This is an appeal against the decision of the Customs, Excise and Gold (Control) Appellate Tribunal dated 21-9-1987 in which the Tribunal took the view it did in view of the order of the High Court no action on the notice could further be taken. The Tribunal made an observation that the High Court did not express any opinion as to whether the Revenue was entitled to move the High Court against the second notice. In view of the facts and the circumstances of this case, we find no merit in this appeal. The appeal is dismissed accordingly. But the dismissal of this appeal will not preclude the Collector of Central Excise and Customs to move the High Court for taking appropriate directions from the High Court of Orissa, if he is so advised.”
Shri K. Narasimhan, learned Advocate pleaded that in view of the judgment of the Supreme Court on the similar facts and circumstances and of the same party the order passed by the Collector does not stand and needs to be quashed. He has pleaded for the acceptance of the appeal.
2. Shri M.S. Arora, learned JDR who has appeared on behalf of the respondent stated that the order passed by the Tribunal in other cases does not amount as res judicata for the purpose of the assessment in tax proceedings relating to subsequent or other periods. In support of his arguments, Shri M.S. Arora, learned JDR relied on the Order-in-Original and pleaded that there is no infirmity in the order passed by the Collector and the finding of the Collector needs be confirmed.
3. We have heard both the sides and gone through the facts and circumstances of the case. The facts are not disputed. There were 7 Show Cause Notices which were challenged before the Orissa High Court and Orissa High Court vide their Order dated 4-7-1984 has held as under :-
“4-7-1984. Learned Standing Counsel, Central Govt. appearing on behalf of opp. parties submits that the impugned notices/orders in Annexures 1 to 7 which are the subject matter of the Writ Petition and for quashing of which the petitioner has filed this writ petition as well as the connected Misc. case have been directed to be withdrawn. As the notices/orders in Annex. 1 to 7 are withdrawn, this writ petition has become infructuous. No action on the notices withdrawn would further be taken.
With the aforesaid observation, this writ petition is disposed of. No costs.”
Out of these 7 Show Cause Notices, the Department had re-issued 4 Show Cause Notices. Out of these 4, one is a subject matter of the dispute before us and the other was a subject matter of dispute before the Tribunal in Appeal No. E/844/85-C which was disposed of by the Tribunal vide Order No. 917/87-C, dated 21-9-1987. Paras 10,11 and 12 from the said judgment are re-produced below :-
“10. It is true that the High Court could itself be approached for taking action in their contempt jurisdiction against the officer responsible for this Show Cause Notice. Failure to have recourse that remedy however does not impede us in overseeing that the orders passed by the superior Courts are not flouted or disobeyed by the lower authorities and if this is done, the Tribunal will not be a silent spectator to such disobedience and drive the parties to approach the High Court or Supreme Court. It will strive to uphold the rule of law and in appropriate cases, strike down such orders which are passed in flagrant disobedience of the orders of the High Court or Supreme Court. The present case appears to be one where the Collector of Central Excise and Customs issued Show Cause Notice as to the same cause of action against the appellant-importer in spite of the direction of the High Court that no action on notices withdrawn would further be taken. Merely because another notice with respect to the same facts or cause of action was issued to the importer-appellant or that the Revenue in their application to High Court proposed to make such a reservation, would not come to the aid of revenue in absence of an order by the High Court granting leave or liberty to Revenue on that account. That has not been done or granted in this case.
11. After the order as aforesaid had been dictated and pronounced, Shri Chakraborty and Smt. Chander for the respondents stated that if so advised and if considered necessary, it should be open to Revenue to approach the Hon’ble High Court of Orissa for getting necessary directions in the matter. Needless to say for the purpose, no permission of the Tribunal is necessary.
12. Our conclusion is that Show Cause Notice dated 18-10-1984 and demand raised therein and order dated 7-3-1985 confirming the demand passed by Collector of Customs and Central Excise, Bhubaneshwar are against and offending order dated 4-7-1984 passed by Hon’ble High Court of Orissa at Cuttack directing “no action on the notices withdrawn would further be taken”. The demand of duty and penalty so raised against the appellants is therefore, hereby set aside and the appeal allowed.”
This order passed by the Tribunal was challenged before the Supreme Court and Hon’ble Supreme Court in Civil Appeal No. 2113 of 1988 vide order dated 16-9-1989 had held as per the judgments re-produced above. The facts of the present matter are similar. In view of the above discussions, we are of the view that the Revenue authorities were not justified in issuing fresh Show Cause Notices without taking proper permission from the Orissa High Court and the judgment of the Hon’ble Supreme Court in the case of Collector of Central Excise and Customs v. Indian Metals and Ferro Alloys Ltd. in Civil Appeal No. 2113/88, dated 16-9-1988 is binding on us especially when the matter pertains to the same parties. Accordingly, we set aside the impugned order demanding a duty of Rs. 10,01,160.12 and imposing a penalty of Rs. 1 lakh. Revenue authorities are directed give consequential effect to this order. In the result, the appeal is allowed.