9911796707
TMI Blog1992 (11) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise, Bhubaneswar holding that an amount of Rs. 33,000/- which had been irregularly availed of by them as modvat credit and utilised for payment of duty was recoverable from the appellants M/s. Vikrant Televisions (India) Private Limited under Rule 57-I of the Central Excise Rules, 1944 read with Section 11 A of Central Excises and Salt Act, 1944. However, no penalty had been imposed on them by the adjudicating authority taking the facts and circumstances in view . 3. The appellants were represented by Shri N.C. Mitra, learned Consultant. He contended that the adjudication order leading to the present appeal has been passed wholly without any justification disregarding the earlier decision of this Bench vide order No. 357/Cal/1990/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Stale of Uttar Pradesh v. Nawab Hussain reported in AIR 1977 SC 1680 was also cited by him. In this case, the Supreme Court had held that where a plea is not raised in petition but could well have been raised and the petition is dismissed, subsequent suit raising that plea is barred by res judicata. They had referred, in this judgment to their observations in an earlier case (AIR 1965 SC 1150) as follows :- Rule of constructive res judicata This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments advanced in the matter. The principles of res judicata and constructive res judicata will certainly be applicable in the present matter. When the Collector (Appeals) had held in his Order-in-Appeal that there was no allegation of suppression or misstatement in the notice and the same was hit by limitation, the department should have raised the question of extended time limit when they filed the Appeal before this Tribunal. Not having done so, it is not open to them to institute fresh proceedings by raising the charge of suppression. The adjudication proceedings are covered by the principle of res judicata and on that score itself, the impugned order is liable to be struck down, as passed without authority. On merits also, it is total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original show cause notice issued by the Superintendent which culminated in the Tribunal s order referred to earlier is that they did not declare the inputs. Colour Picture Tubes and yet they had taken the input credit in RG 23A Part II during the period 1-11-1987 to 31-12-1987. These declarations having been filed by them to the Department, the omission is attributable to both sides and no charge of misstatement or suppression can arise. The finding in the impugned order that they did not disclose that they had not submitted any declaration before the proper Officer nor obtained any acknowledgement while submitting the RT 12 returns makes strange reading. The procedure to be followed by a modvat beneficiary has been prescribed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
