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COMMISSIONER OF CENTRAL EXCISE versus M/S MAILL INDIA LTD

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Commissioner Of Central Excise v. M/s Maill India Ltd - CENTRAL EXCISE APPEAL No. 28 of 2004 [2004] RD-AH 1324 (5 November 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Central Excise Appeal No.28 of 2004

Commissioner of Central Excise, Noida v. M/s

MIL India Ltd.

Hon'ble R.K.Agrawal, J.

Hon'ble K.N.Ojha, J.

(Delivered by R.K.Agrawal, J.)

In the present appeal filed under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as "the Act") the Commissioner of Central Excise, Noida, has raised the following four substantial questions of law which are said to arise out of the order of the Custom Excise and Service Tax Appellate Tribunal, dated 3.10.2003:-

"1. Whether the CESTAT has committed a manifest error of law to hold the bought out items to be not dutiable whereas the order dated 22.3.2000 (Annexure No.3) passed by Commissioner (Appeals) has become final and it was merely consequential order on quantum dated 31.10.2001 (Annexure No.4) passed by Deputy Commissioner and upheld in appeal vide order dated 9.4.2003 (Annexure No.5) from which the appeal arose before the CESTAT and thus it was not open for the respondent to question the dutiability of bought out items in the appeal arising out of execution order?

2. Whether the dutiability of bought out items in the manufacture of plant and equipment under Section 2(f) read with Section 3 of the Act falling under Chapter sub heading No.8479.90 of Central Excise Tariff Act 1985 having been decided vide order in original dated 14.5.1999 (Annexure No.2) following/referring the judgment of Hon'ble Supreme Court in the case of Narne Tulman Manufacturing (P) Ltd. V/s CCE (1989 Vol 38 ELT 566 SC) and Sirpur Paper Mills Ltd. V/s CCE (1998 Vol 97 ELT 3 - SC), has achieved finality in view of the unchallenged order of Commissioner (Appeals) dated 22.3.2000 (Annexure no.3) and thus it was no longer open for the respondent to question the dutiability in the appeal before the CESTAT arising out of the consequential order dated 31.10.2001 (Annexure No.4) quantifying the demand passed by the Deputy Commissioner, Central Excise, Division-I, Noida?

3. Whether the CESTAT has committed a manifest error of law and facts both in applying the ratio of decision laid down by Hon'ble Supreme Court in the case of Collector of Central Excise, Indore V/s Hindustan Lever Ltd. (2000 Vol 120 ELT 3 SC - relevant paragraph 1 & 5) which relates to complete remand to the original authority where the party again joined the issue, whereas in the present set of facts the first order of Commissioner (Appeals) dated 22.3.2000 (Annexure no.3) finally decided the controversy and the Assistant Commissioner was merely directed to requantify the demand in view of corrigendum to show cause notice and this order of the Commissioner (Appeals) was accepted by the respondent and thus become final inter partes?

4. Whether the order of the CESTAT and the findings recorded therein are perverse and the contention of the respondent is hit by principle of approbate and reprobate in as much as the CESTAT has completely failed to decide the controversy on the facts before it and further failed to take note of the allegations of the respondents on quantification that they are entitled to MODVAT Credit on bought out items which, if allowed, shall result in duty liability to the tune of 23.56 lacs only, however, the contention of the respondent regarding MODVAT Credit was rejected by the Commissioner (Appeals) vide order dated 9.4.2003, which was impugned in the appeal before the CESTAT?"

Briefly stated, the facts giving rise to the present appeal are as follows:-

M/s Mazz India Limited, now known as MIL India Limited, (hereinafter referred to as "the respondent") is engaged in manufacture of plant and equipment for the soap detergent etc. falling under sub heading 8479.90 of the Central Excise Tariff Act, 1985 (hereinafter referred to as "the Tariff Act"). It is registered under the Act. The Assistant Commissioner, Custom and Central Excise, Division I, Noida, issued a show cause notice on 23.5.1997 calling upon the respondent to show cause as to why the value of bought out items used in the assembly of goods at site and claimed as trading goods during the period April, 1996 to March, 1997 be not recovered as it had evaded payment of excise duty amounting to Rs.94,03,500/- by non-inclusion of the value. The respondent submitted it reply on 19.8.1997 and denied to have evaded any excise duty. It further submitted that bought out items were trading goods and were attached to earth and, thus, became immovable and cannot be held to be excisable goods. It also raised a plea of limitation that the demand is barred by time. The Assistant Commissioner, Central Excise, Division I, Noida, vide order dated 14.5.1999 confirmed the demand of Rs.94,03,500/-. Feeling aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), Custom and Central Excise, Ghaziabad. The Commissioner, vide order dated 22.3.2000, had held that the process of assembly and erection of plant at site manufactured by the appellant with bought out items supplied directly at site amounts to manufacture of a distinct new commercial article and chargeable to duty under the Act and the Rules. He did not disturb the findings of the Assistant Commissioner in this regard. However, he remanded the matter to the Assistant Commissioner to redetermine the quantum of duty actually due after giving an opportunity to the appellant. The relevant portion of the order of the Commissioner (Appeals) is reproduced below:-

"I have examined the case and have considered the submission put forth before me. I find that the issue regarding dutiability of plant machinery assembled/erected at site has now been settled by a catena of decisions by Tribunal and the Apex Court; also referred to by the ld. Assistant Commissioner. It has been held that because the items are heavy and so have to be fixed in what appear to be a permanent position should not deceive any one into holding that they are immovable property.  Fixing them is necessitated by the need to make them only functionally effective and do not answer the test of permanency. Therefore, the process of assembly, erection of plant at site manufactured by the appellants with bought out items supplied directly at side amounts to manufacture of a distinct new commercial article and chargeable to duty under the Central Act and Rules. The bought out items having been used are integral and essential part of the supplied goods, hence the value of such bought out items is includible for the purpose of levy of excise duty. I do not see any reason, therefore, to disturb the findings of the ld. Assistant Commissioner in this regard.

However, I do accept appellant's contention about the quantum of duty actually leviable consequent upon revision of the period of demand from April'96 to No'97 till March'97 vide corrigendum Dt.6.6.97. The quantum of duty actually due, therefore, has to be redetermined by the Ld. Assistant Commissioner and intimated to the appellants. Before that, the appellants should be given an opportunity to put-forth their submission in the matter. This submission would only be confined to the quantification details and methodology.

The appeal is disposed of on above terms."

The aforesaid order had become final between the parties as no further appeal as provided in Section 35E(3) of the Act has been preferred by the respondent.

Pursuant to the order of remand, the Deputy Commissioner, Central Excise, Noida, granted personal hearing to the respondent on 25.10.2001 and 29.10.2001, which was attended by Sri K.L.Sharma, Manager (Finance) of the respondent. Inspite of request being made by the Deputy Commissioner to provide requantification details and methodology by 31.10.2001, the respondent did not provide any quantification details and methodology in respect of the goods supplied to M/s Galaxy Surfactant Ltd., Taloja and M/s Godrej Soaps, Malanpur. In the absence of any particular/information having been given by the respondent, the Deputy Commissioner took it that the parties non-submission of supportive documents clearly indicated that no new figures/facts are available with the respondent in support of their contention and, therefore, he confirmed the demand of Rs.94,03,500/- as duty on the portion of bought out items on which no duty was paid by the respondent. Feeling aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), Custom and Central Excise, Noida. Before the Commissioner, personal hearing was given on 4.2.2003 before whom it was contended that no duty is leviable on bought out items. On the question of quantification, it was contended that their liability without admitting would be only of Rs.23.56 lacs as they would be entitled to MODVAT Credit on the duty paid on bought out items. The Commissioner (Appeals) did not go into the question of liability of the duty on bought out items. He did not accept the plea regarding entitlement of MODVAT Credit on the ground that the prescribed procedure has not been followed. Consequently, he confirmed the order passed by the adjudicating authority. Still feeling aggrieved, the respondent preferred an appeal before the Custom Excise and Service Tax Appellate Tribunal. Before the Tribunal, it was submitted on behalf of the respondent that there is no liability for payment of duty on various bought out items which were cleared directly to the site of the customers. On behalf of the appellant, it was submitted that as the respondent had not challenged the order dated 22.3.2000 passed by the Commissioner (Appeals) remanding the matter for quantification of duty liability, it was not open to the respondent to put forward the abovementioned contention which was met by the respondent that since the entire matter is pending before the higher authority, namely, the Tribunal, it is open to it to take up the contention regarding the dutiability of bought out items. In this regard, reliance was placed by the respondent in the case of Collector of Central Excise, Indore v. Hindustan Lever Limited, 2000 (120) ELT 3 (SC). The Tribunal by the impugned order had allowed the appeal. It had held that it is open to the respondent to contend before the Tribunal and raise the contention regarding dutiability of bought out items in the appeals before it even if they had not challenge the order passed by the Commissioner (Appeals) dated 22.3.2000 remanding the matter. The Tribunal had further held that no duty is payable on bought out items which were directly supplied by the assessee to the site of its customers.

We have heard Sri S.P.Kesarwani, learned Standing Counsel for the appellant, and Sri Madabushi Parthasarathy Devnath, learned counsel appearing for the respondents.

The learned counsel for the respondent raised a preliminary objection that the present appeal is not maintainable before this Court as under Section 35G of the Act an appeal lies to this Court from every order passed by the Appellate Tribunal after 1st day of July, 2003 if the appeal against the order of the Tribunal does not relate to the determination of any question having relation to the rate of duty of excise or to the value of the goods for the purpose of assessment. According to him, in respect of the order of the Tribunal which relates to the determination of any question relating to the rate of duty of excise or to the value of the goods for the purpose of assessment, in that event an appeal lies before the Hon'ble Supreme Court. He further submitted that as in the present appeal determination of the rate of duty as also the valuation of the goods for the purposes of assessment in respect of bought out items supplied directly at the site is involved, the appeal, if any, lies before the Hon'ble Supreme Court under Section 35L of the Act and, therefore, the present appeal is not maintainable. In support of his preliminary objection, he has relied upon the following decisions:-

(i) Union of India v. Auto Ignition Ltd., 2002 (142) ELT 292 (Bom); and

(ii) Colour Chem Ltd. v. Union of India, 1998 (98) ELT 303 (Bom) against which the Special Leave Petition filed by Union of India has been rejected by the Apex Court reported in 1998 (104) E.L.T. Capital A 137 (SC).

The learned Standing Counsel, however, submitted that the present appeal is confined only to the question as to whether the respondent could have raised/agitated the matter regarding dutiability of the goods before the Tribunal when it had not challenged the order of remand passed by the Commissioner (Appeals) holding that the duty is leviable on such bought out items and which order has become final. He, therefore, submitted that the present appeal does not raise any question regarding the rate of duty of excise or to the value of the goods for the purposes of assessment and, therefore, the present appeal is maintainable before this Court.

Having heard the learned counsel for the parties in respect of the preliminary objection, we find that in the present case the appeal has been preferred on the substantial questions of law which do not raise any determination of the rate of duty of excise or the value of the goods for the purposes of assessment. The only question raised is as to whether the order of remand passed by the Commissioner (Appeals) having attained finality, it was open to the respondent to reagitate the matter in an appeal filed against the determination of quantum before the Tribunal. No doubt, as held by the Bombay High Court in the cases of Auto Ignition Ltd. and Colour Chem Ltd. (supra) where the rate of duty or determination of the value of the goods is concerned, an appeal lies before the Hon'ble Supreme Court but, as already mentioned hereinbefore, no such question has been raised by the appellant in the present appeal. Thus, the present appeal is maintainable before this Court. The preliminary objection raised by learned counsel for the respondent is, therefore, misconceived and is rejected.

On merits, the learned Standing Counsel submitted that dutiability of bought out items in manufacture of plant and equipment under Section 2(f) read with Section 3 of the Act falling under Chapter sub-heading 8479.90 of the Central Excise Tariff Act, 1985 having been decided by the Commissioner (Appeals) on 22.3.2000 which has achieved finality because no further appeal as provided under Section 35E of the Act was filed before the Tribunal, the question of dutiability in the appeal arising out of the consequential order quantifying the demand could not have been raised or gone into by the Tribunal. He submitted that the decision of the Apex Court in the case of Hindustan Lever Ltd., relied upon by the Tribunal, is not applicable.  In support of his aforesaid submissions, he has relied upon the following decisions:-

(i) Union of India v. Food Specialities Ltd., 1998 (97) ELT 402 (SC);

(ii) Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd., Kanpur, JT 2000 (8) SC 524;

(iii) Commissioner of Customs, Mumbai v. M/s Virgo Steels Bombay and another, JT 2002 (3) SC 558; and

(iv) R.N.Gosain v. Yashpal Dhir, (1992) 4 SCC 683.

The learned counsel for the respondent, however, submitted that non-filing of the appeal against the order passed by the Commissioner (Appeals) dated 22.3.2000 is not a bar and the respondent is well within its right to challenge the dutiability of bought out items before the Tribunal. According to him, in view of the decision of the Apex Court in the case of Hindustan Lever Ltd., such a plea has rightly been entertained by the Tribunal as throughout the entire proceeding it had been contended that no duty is payable on bought out items which were supplied directly to the site of the customers. On merits, he submitted that no duty is payable on bought out items as the erection and commissioning was not undertaken by it but was entrusted to another identity, M/s K.S.Krishnan Associates Pvt. Ltd. The respondent was not manufacturer of bought out items and it had already paid duty on such bought out items. In support of his aforesaid submissions, he has relied upon the following decisions:-

(i) Collector of Central Excise, Indore v. Hindustan Lever Ltd., 2000 (120) ELT 3 (SC);

(ii) Satyadhyan Ghosal and others v. SM. Deorajin Debi and another, 1960 (3) SCR 590;

(iii) Jasraj Inder Singh v. Hemraj Multanchand, 1977(2) SCC 155;

(iv) Preetam Singh (dead) by L.Rs. and others v. Asstt. Director of Consolidation and others, (1996) 2 SCC 270;

(v) Mittal Engineering Works (P) Ltd. v. CEE Meerut, 1996 (88) ELT 622 (SC);

(vi) Quality Steel Tubes (P) Ltd. v. Collector of Central Excise, U.P., 1995(75) ELT 17 (SC); and

(vii) Triveni Engineering & Industries Ltd. v. Commissioner of Central Excise, 2000(120) ELT 273 (SC).

Having heard the learned counsel for the parties, we find that it is not in dispute that the Commissioner (Appeals) vide order dated 22.3.2000 had decided the question regarding the liability of the respondent to pay the central excise duty on bought out items which have been directly sent at site. Relevant portion of the order of the Commissioner (Appeals) had already been reproduced hereinbefore. Admittedly, the respondent did not challenge the order passed by the Commissioner (Appeals) by filing a further appeal before the Tribunal. Thus, the said order had become final between the parties.

The question is as to whether if a particular point which has been decided by an authority in an appeal preferred by a party and a right of further appeal though provided, is not availed of and the party allows the order to become final, can it be permitted to reagitate/reopen the issue once again before the Tribunal in proceedings which arises out of an order giving effect to the earlier order of remand.

In the case of Food Specialities Ltd. (supra) the Apex Court has held that where a decision of the lower authority on classification of a product in assessee's favour is not appealed against by the Department and, therefore, became final, the consequential order about quantum alone is not open to challenge by the Department. The Apex Court had dismissed the Department's appeal for this reason alone.

In the case of Flock (India) Pvt. Ltd. (supra) the Apex Court has held that under the Act any order passed by an authority is appealable to the Collector (Appeals) and a further appeal to the Appellate Tribunal against the order of the Collector (Appeals) is also provided in Section 35. The hierarchy of authority for adjudication and determination of matter relevant for charging excise duty is for a purpose. It is not an empty formality. Classification of the goods manufactured by the assessee is important for the purpose of levy and collection of excise duty. In paragraph 10 of the report, the Apex Court has held as follows:-

"10. Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questioned and the matter is not to be reopened in a proceedings for refund which if we may term it so, is in the nature of execution of a decree/order. In the case at hand it was specifically mentioned in the order of the Assistant Collector that the assessee may file appeal against the order before the Collector (Appeals) if so advised." (emphasis supplied by us)

In the case of M/s Virgo Steels (supra) the Apex Court has held that the mandatory requirement of issuance of a notice under Section 28 of the Customs Act can be waived as it deals with the individual right of a person concerned and is for his benefit.

In the case of R.N.Gosain (supra) the Apex Court has held that the law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled to the footing that it is valid, and then turn round and say it is void for the purpose of securing other advantage." The question of waiver of notice or approbate and reprobate does not arise at all in the present appeal.

In the case of Hindustan Lever Ltd. the facts were that Hindustan Lever Ltd. was engaged in the manufacture of toilet soaps and organic surface active agents. It submitted various price lists claiming deductions from the assessable value. The Assistant Collector provisionally approved the prices after disallowing some of the deductions claimed by it. The respondent preferred appeals before the Commissioner (Appeals) who allowed most of the deductions sought by the respondent except three items out of which "discount damages" was one of the items. In further appeal filed before the Tribunal, the Tribunal allowed the appeal and directed the original authority to consider afresh the claim for deduction in accordance with law. On remand, the original authority again disallowed some of the deductions claimed by it including the deduction in regard to damages. Having failed in appeal before the Appellate Authority, i.e., the Commissioner (Appeals), it approached the Tribunal once again and the Tribunal allowed the appeal relying on its judgment in Assam Valley Plywood Pvt. Ltd. and Tungbhadra Industries Ltd. and held that discount should be allowed in regard to the value of compensation paid to be buyers in lieu of damages caused to goods during transit depending on the nature and extent of damage. The order of the Tribunal was challenged in appeal filed before the Apex Court. Before the Apex Court, learned counsel appearing for Hindustan Lever Ltd. raised a preliminary objection that the Collector of Central Excise should not be permitted to question the finding of the Tribunal as to the taxability of the damage discount because this question was finally adjudicated and decided by the Tribunal in the first round of litigation between the parties and the Collector of Central Excise, at that stage, did not question the finding of the Tribunal which remanded the matter back to the original authority to decide certain other questions. Hence the issue having attained finality, the same should not be permitted to be reopened by way of present appeal. The Apex Court repelled the preliminary objection on the ground that inspite of finding given by the Tribunal, the parties had once again joined the issue before the original authority on this very issue by producing material like affidavits and made their submissions based on which the original authority gave a finding against Hindustan Lever Ltd. who took the matter in appeal before the Appellate Commissioner and having lost before the Appellate Commissioner, Hindustan Lever Ltd. once again took the matter before the Tribunal. The Apex Court further found from the material on record, no argument based on finality of the decision have been urged before the Tribunal nor the Tribunal has decided the issue on that basis. Thus, on facts, finality is not a ground on which the Tribunal has allowed the appeal. Apart from it, the Apex Court further held that it is not bound by the finding of the Tribunal rendered in the first instance while remanding the case to the lower authorities because it is now hearing an appeal against the order in which the earlier order had merged.

In the case of Jasraj Inder Singh (supra) the Apex Court has held as follows:-

"In an appeal against the High Court's finding the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of coordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher court when it hears the matter in appeal."

In the case of Satyadhyan Ghosal (supra) the Apex Court has held that it is open to the Appellate Court which had not earlier considered the matter, to investigate in an appeal from a final decision grievance of a party in respect of an interlocutory order. Relying upon Privy Council decisions in the case of Maharaja Mohesur Singh v. The Bengal Government, (1859) 7 M.I.A. 283; Ramkripal Shukul v. Mst. Rup Kuari, (1883) L.R. II I.A. 37, Forbes v. Ameeroonissa Begum, (1865) 10 M.I.A. 340 and Sheonath v. Ramnath, (1865) 10 M.I.A. 413, the Apex Court has held as follows:-

"It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order.  A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand."

In the case of Preetam Singh (supra) the Apex Court has held as follows :-

"6. When the matter was in revision before the Assistant Director of (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revision jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revision jurisdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolidation) had, even if the remand order of the Settlement Officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo motu power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him."

The principle laid down by the Apex Court in the case of Hindustan Lever Ltd. (supra) is not applicable to the facts of the present case in as much as in the present case we find that pursuant to the order of remand passed by the Commissioner (Appeals), the respondent had not reagitated the issue regarding dutiability of bought out items before the original authority, i.e., the Assistant Collector, Central Excise. It would be treated that the respondent had accepted the order passed by the Commissioner (Appeals) in so far as it has held that bought out items brought directly to site was liable to excise duty. That order having become final, as held by the Apex Court in the case of Food Specialities Ltd. (supra), it was not open for the respondent to reopen it in the appeal preferred before the Tribunal. Further, a specific plea regarding the finality of the order passed by the Commissioner (Appeals) was taken by the appellant before the Tribunal and, therefore, the principle laid down by the Apex Court in the case of Hindustan Lever Ltd. (supra) would not be applicable.

In the case of Jasraj Inder Singh (supra) the Apex Court has held that the Supreme Court is not bound by what the High Court might have held in its remand order. It has held that a finding in an earlier order cannot bind a higher Court when it hears the matter in appeal. We are of the considered opinion that the same principle cannot be extended to a Tribunal which is not a Court. As held by the Apex Court in the case of Flock (India) Pvt. Ltd. (supra) if an order passed by an adjudicating authority is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. The provision of appeals in the Act and the Rules will loose their relevance and the entire exercise will be rendered redundant. The position will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty and such a position cannot be countenanced. The principle laid down by the Apex Court in the case of Satyadhyan Ghosal and Preetam Singh (supra) is also not applicable in the present case. It is not a case of interlocutory order nor it is a case where the Tribunal has any suo motu power of revision of an order.

In view of the foregoing discussion, we are of the considered opinion that it was not open to the Tribunal to permit the respondent to reopen and reagitate the matter relating to dutiability of the bought out items brought at site once again when the order of the Commissioner (Appeals), dated 22.3.2000, holding it dutiable had attained the finality. In this view of the matter, we are not going into the question as to whether the bought out items on site can be subjected to duty under the law or not.

In view of the foregoing discussion, the appeal succeeds and is allowed. The order passed by the Tribunal is set aside.

Nov.5, 2004

vkp


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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