9911796707
TMI Blog1987 (3) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinates to permit the applicants to clear repaired cops from its factory without payment of Central Excise Duty and (2) to grant interim stay of the proceedings pursuant to show cause notice No. Misc./PRES. ENGG./Noida-II/82/873, dated 6-10-1986. 2. The application has been filed under the following circumstances :- The appeal of these applicants was disposed of by Order No. 315/86-D, dated 21-5-1986. Under the said order the impugned order of the Collector was set aside and the matter was remitted to the Collector for re-adjudication in the light of the observations and directions contained in the said order. The applicants point out that this order appears to have been misconstrued by the respondent-Collector and his subordinates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-Collector and had received letter dated 23-3-1987 containing the views of the respondent-Collector. He reiterated the objections of the department as contained in the said letter in opposing the present application. 4. A perusal of the said letter indicates that the respondent-Collector is of view that, as indicated in Board's circular No. 2/85-AU dated 8-1-1985, any decision of this Tribunal is a judgment in personam and not a judgment in rem and hence "the decision given by this Tribunal in any one case is not binding with reference to any other case even involving the said party." The Collector had indicated that since under order of the Tribunal a de novo adjudication had been directed, the issue of the excisability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the transactions amounted to lending and they were not sales. When the appeal in respect of the year 1967-68 is pending, we do not think it desirable and necessary to deal with the matter under article 226 of the Constitution. Normally, the assessee should be compelled to resort to the statutory remedy. In fact, in this case, he has availed himself of it and he must await the result. But an apprehension is expressed on behalf of the assessee that because a tax case has been filed against the Tribunal's decision relating to the year 1967-68, the Appellate Assistant Commissioner might feel that he was not bound by the view of the Tribunal. We consider that in the hierarchy of authorities set up under the Act, the Tribunal is superior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded on the repaired cops, since repairing did not amount to manufacture within the meaning of Section 2(f) of the Central Excises and Salt Act and that the re-adjudication was to be with reference to the said finding as well as other findings. In the circumstances the view of the respondent Collector that this question of the right to demand excise duty on the repaired cops is still open for discussion, is not correct. So far as the demand for payment of duty on removal of such repaired cops subsequent to the period of adjudication also is concerned, such demand would not be proper so long as the conclusion of this Tribunal, as recorded in the order, is not set aside by any competent superior Court. 8. We are, therefore, of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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