9911796707
TMI Blog1997 (12) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... d order the CCE (A) upheld the findings of the adjudicating authority. In brief the facts of the case are that the appellants manufacture talcum powder on the orders placed by Ponds India Ltd (PIL). This manufacture is under an agreement and the entire production is cleared to the PIL. The duty on the talcum powder is discharged as per the value indicated in the purchase order. It is the case of the department that the transaction between the appellants and the PIL is not at arms length. Therefore the price adopted is wholesale price of M/s. PIL. 3. It was contended by the appellants before the CCE (A) that the goods sold by them to PIL represented the normal price under Section 4(1)(a) of the CEA 1944. It was also contended by the appellants before the CCE (A) that in terms of the previous order passed by the adjudicating authority it was not open to re-open the assessment. It was pointed out by the learned Sr. Counsel that in the previous case the CCE (A) on similar agreement held that transaction value of the appellant is the correct assessable value. It was also pointed out that the present agreement on which the CCE (A) relied upon is similar in nature to the agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that this can be done only if fresh facts are available to the department or some new decisions have come into effect in this regard. He pointed out that the previous order of the CCE (A) was on the basis of the agreement entered into by the appellants as well as the PIL. The same agreement existed during the previous period also; hence it was contended that there are no fresh circumstances which warranted the adjudicating authority to take a different view and that being so, on the similar set of evidence, the matter could not have been re-opened. In this connection, he relied upon the decision of the Hon'ble Supreme Court in the case of Kamala Finance Corporation reported in 1991 (55) E.L.T. 433. In this connection he also placed reliance on the decision of the Hon'ble Madras High Court reported in 1995 (77) E.L.T. 529 in the case of Bush Boake Allen India Ltd. v. U.O.I. Relying on this decision it was contended before us that no doubt, in taxation matters principles of res judicata will not apply. But the learned Counsel contended that the decision of the Appellate Collector rendered in appeal in the year 1992 which was judicial one cannot be changed by the executive AC in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot applicable to the facts of the present case. In that particular case, it was held by the Hon'ble Supreme Court that the decision of the CCE (A) is binding on the AC. But in this case the proceedings under which the CCE (A) passed the order in 1992 is different proceedings. In the latter case, AC was considering the assessable value with reference to the latter period. 7. In this connection the decision of the Hon'ble Supreme Court in the case of M/s. Jain Exports and another v. U.O.I. reported in 1992 (61) E.L.T. 173 (S.C.) = 1988 (17) ECR 631 (S.C.)] becomes relevant. In that particular case, in Paras 9 and 11, their Lordships held as follows : "9. Massive arguments were built up by learned counsel for the appellants on the basis that the decision of the Central Board and the Central Government rendered in similar matters were binding on the collector and he could not have acted to the contrary. Several precedents have been cited during the hearing. In a tier system, undoubtedly decisions of higher authorities are binding on lower authorities and quasi-judicial Tribunals are also bound by this discipline. 11. That, however, does not assist the appellants at al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier orders of release were an administrative one and were not the result of a quasi-judicial adjudicatory process. Even otherwise, according to the learned Senior Standing Counsel, orders of authorities and the Tribunal cannot be equated to precedent. Further, one order cannot be judged with reference to the earlier or later order. It will be that the impugned order is a right order and the earlier order or the latter order is wrong, and that each order has to be judged according to its own facts and circumstances and the provision of law in force at the time. It is the specific case of the respondents in Paragraph 6 of the counter affidavit that the earlier order is bad." 9. It is also seen that in that particular case, their Lordships referred to the decision of the Hon'ble Supreme Court reported in 1995 (1) SCC 745 wherein at Para 8 it was held as under : 45. In 1995 (1) S.C.C. 745, the Supreme court has held in Paragraph 8 as follows : "We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible, in principle. Since we have come across ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world." It is thus seen that the Tribunal, cannot ignore the law and the well accepted norms that assessable value is to be determined in accordance with the law and the principles laid down by the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son and the normal price would be determined as provided under Section 4(1)(a). It was therefore, contended that in this case, invocation of Section 4(1)(b) is not correct. It was pointed out that it is only where the normal price of delivery of the goods is not ascertainable for the reason that such goods are not sold or for any other reason, nearest ascertainable equivalent value thereof is required to be determined. It was, therefore, pointed out that there was price available for which the goods were sold to PIL and thus the sale is deemed to be factory gate sale of the appellants. He pointed out that the CCE (A) erred in interpreting the recitals of the agreement. It was pointed out that the CCE (A) has misread the meaning and the scope of Clause 3 of the agreement. He drew our attention to the above clause and pointed out that this requirement with reference to the specification and quantum is only to ensure the quality aspect of the product. The quantity referred to in Clause 3 refers to the quantity of the finished product. He also pointed out that the findings of the CCE (A) that Clause 4 and 17(c) of the agreement is restrictive in nature is erroneous. In this connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market at the factory gate of the manufacturer. In this connection he relied upon the following decisions : 1. 1985 (22) E.L.T. 302 (S.C.) in the case of U.O.I. v. Cibatul Limited 2. 1985 (22) E.L.T. 306 (S.C.) in the case of U.O.I. v. Godfrey Philips India Ltd. and others. 3. 1990 (47) E.L.T. 62 (Tribunal) in the case of Kerala State Electricity Board v. C.C.E. 4. 1995 (75) E.L.T. 257 (Guj.) in the case of Prolite Engineering Co. v. U.O.I. 5. 1995 (75) E.L.T. 266 (Kar.) in the case of Wipro Infotech Ltd. v. CEGAT 6. 1984 (17) E.L.T. 323 (S.C.) in the case of U.O.I. v. ATIC Industries Ltd. 7. 1984 (17) E.L.T. 329 (S.C.) in the case of U.O.I. v. Bombay Tyre International Pvt. Ltd. 8. 1989 (41) E.L.T. 368 (S.C.) in the case of U.O.I. v. Playworld Electronics Pvt. Ltd. 9. 1989 (41) E.L.T. 374 (S.C.) in the case of C.C. v. Krishna Sales Pvt. Ltd. 10. &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence contrary involving production or financial control is brought on record it cannot be held that transactions are not on principal to principal basis. In this connection he drew our attention to Para 14 of the agreement which provides for termination of the contract which goes to show that both the appellants and the PIL can exercise equal rights with regard to termination of the contract apart from other provisions and this reinforces the appellants' claim that there is no control over the business activities of the appellants by the PIL. In support of his contentions he relied upon the decision of the Supreme Court in the case reported in 1985 (22) E.L.T. 324 (S.C.) wherein the Hon'ble Supreme Court has held as follows : "It may be noticed that the respondent manufactures the goods according to the specifications supplied by Nestle's and affixes the trade marks of Nestle's on the goods and supplies the same to Nestle's at a wholesale price free on rail at Moga or free on lorry at factory stipulated under the agreements with Nestle's. What are sold and supplied by the respondent are goods manufactured by it with the trade marks affixed to them and it is the wholesale price of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 4 of the agreement, it was the responsibility of the appellants to manufacture strictly in accordance with the specifications of the PIL and PIL can carry out examination and quality control test to test the quality specifications. If they do not satisfy the same, it will be rejected but the appellants are given the freedom only to re-process the finished product. The finished products are required to be sold only to PIL as per Clause 6 of the agreement. But in Para 6, it is mentioned that the same is on principal to principal basis as per the price agreed. 14. As per Para 7 of the agreement, he pointed out that it will be the responsibility of the appellants to ensure compliance with the rules and regulations. He also pointed out that as per Clause 9, it is the responsibility of the appellants to keep all the formulations and ingredients and specifications communicated to the appellants by PIL as business secrets and as per Para 10 of the agreement it was pointed out that the appellants shall not sub contract or delegate any other person, Co., whole or any part of the manufacture of the aforesaid product with the said brand name without permission of PIL. It was also ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants. It was therefore, pointed out that the whole case turns out on the interpretation of the agreement and the clauses therein which goes to show that the assessable value of the goods is the value realised by PIL and not the sale price of the appellants to PIL. 17. We have considered the submissions made by both the sides. It is seen from Para 14 of the impugned order that the CCE (A) came to the finding that it may be that the appellants and PIL are not related persons. But he was of the view that the fact remains that the appellants had freedom of action subject to the conditions in the agreement. In this connection he referred to the decision of the Hon'ble Supreme Court in the case of Cibatul referred to supra and distinguished the same on account of the fact that in that case the assessee can sell the rejects to others or even dispose the goods if they were not accepted by the buyer. It was therefore, concluded by him that the goods do not belong to the buyer. He was of the view that in view of the various clauses which he had discussed in the order i.e. Clauses 3, 4, 6 and 15 there are various restrictions on the appellants. Therefore, the transactions are not at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , so fixed, shall in relation to the goods so sold, be deemed to be the normal price thereof; (iii) where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealer, to dealers (being related persons) who sell such goods in retail; (b) where the normal price of such goods is not ascertainable for the reason, that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2) Where, in relation to any excisable goods the price thereof for delivery at the place of removal is not known and the value thereof is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons. Therefore, the arguments of the Sr. Counsel on behalf of the appellants that as per Section 4(1)(a) of the CEA 1944 the price is the price at which such goods are ordinarily sold by the assessee to the buyer in the normal wholesale trade is correct in view of the fact that the buyer, i.e. PIL is not a related person of the appellants and price is the sole consideration for the sale. 20. It is, therefore, clear from the above said section that in order to take out the case of the appellants from Section 4(1)(a) to Section 4(1)(b) it must be shown that the appellants and the PIL are related persons. There is a finding to the effect that there is no evidence in this case in this regard. 21. But Shri V.T. Gopalan, SCGSC appearing for the department contended that various clauses in the agreement show that the transactions are not at arms length. In this connection it is seen that as per Clause 3, it is stated that the appellants will have to make their own arrangements to purchase and procure all the raw materials, components, containers etc. for the purpose of manufacture of the finished products. It was also the responsibility of the appellants to arrange and procur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to affix the trade marks of the buyer on the manufactured goods and, it is said, that indicates that the goods belong to the buyer. It seems to us clear from the record that the trade-marks of the buyer are to be affixed on those goods only which are found to conform to the specifications or standard stipulated by the buyer. All goods not approved by the buyer cannot bear those trade marks and are disposed of the sellers without the advantage of those trade-marks. The trade-marks are affixed only after the goods have been approved by the buyer for sale by the seller to the buyer. The seller owns the plant and machinery, the raw material, the labour and manufactures the goods and under the agreements, affixes the trade marks on the goods. The goods are manufactured by the seller on its own account and the seller sells the goods with the trade marks affixes on them to the buyer. 8. The appellant has invited our attention to certain observations in Union of India v. Delhi Cloth and General Mills - 1977 E.L.T. (J 199) (S.C.) = (1963) Supp. 1 SCR 586 at 592 and 598, South Bihar Sugar Mills Ltd., etc. v. Union of India and others [1978 (2) E.L.T. (J 336) (S.C.)=1968 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny right, or ownership of goodwill in any of the trade marks, jars, closures, labels which they may use in the products manufactured by them and sold to PIL. The reason is that the appellants are manufacturing the goods by the technology given by the PIL and by using the trade mark of PIL. Therefore, the PIL wanted to safeguard their trade mark rights and ownership on those goods. In any transaction such agreements are done. The reason is that the technology of production is given by the PIL and they wanted to safeguard their trade mark. Nothing can be read into it to come to the conclusion that this takes out of the purview of the transaction at arms length. So also it is stated therein that the appellants have no right to use or cause to be used the above said trade mark, components etc. to another person. As per Clause 9, the appellants have to keep the formulations and ingredients as business secrets and shall not be disclosed to any other person. This also is in conformity with the usual agreement and we see no reason as to how can it be termed as one which is not on principal to principal basis. Clause 10 only states that the appellants shall not sub-contract or delegate to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e PIL the appellants shall not manufacture item during or after a reasonable period of time after termination of this agreement which is prejudice to the business interest of the PIL. This clause certainly is the only one which protects the interests of the buyer i.e. PIL and their business interests. Merely because the said clauses mentions the above terms, it cannot be said that the transaction is not on principal to principal basis. Appellants as per Clause 13 as above has the option for termination of the contract and after a period of reasonable time the appellants are at liberty to manufacture the items of like nature. This also shows that the transaction is on principal to principal basis but at the same time it only protects the business interests of the buyer i.e. PIL. Clause 12 only states that on termination of the agreement, the appellants shall not manufacture the products as per their formulations and specifications and return the documents with respect to these formulations and specifications along with other technical information and the finished products meeting the quality formulations and specifications in the possession of the appellants have to be sold to PIL a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Nestle's. What are sold and supplied by the respondent are goods manufactured by it with the trade marks affixed to them and it is the wholesale price of such goods that must determine the value for the purpose of assessment of excise duty. It is immaterial that the trade marks belong to Nestle's. What is material is that Nestle's have authorised the respondent to affix the trade mark on the goods manufactured by it and it is the goods with the trade marks affixed to them that are sold by the respondent to Nestle's. There can therefore be no doubt that the wholesale price at which the goods with the trade marks affixed to them are sold by the respondent to Nestle's as stipulated under the agreements would be the value of the goods for the purpose of excise duty. That is the price at which the respondent sells the goods to Nestle's in the course of wholesale trade and we fail to see how the value of the trade marks could be added to the wholesale price for the purpose of determining the value of the goods for the purpose of levy of excise duty." Therefore, the above facts clearly cover the present issue and the decision rendered by three learned judges clearly applies to the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Assistant Collector the buyer was the manufacturer of goods and not the seller. The Collector of Central Excise allowed the appeals of the respondent and accepted the plea that the wholesale price disclosed by the seller was the proper basis for determining the excise duty. The Appellate orders were, however, revised by the Central Government under sub-section (2) of Section 36 of the Act and the orders made by the Assistant Collector were restored. According to the Central Government the buyer was the person engaged in the production of the goods and the seller merely manufactured them on behalf of the buyer and that under the agreements the seller was required to affix the trade-marks of the buyer on the manufactured goods and that indicated that the goods belonged to the buyer. There is a ring of similarity between the facts of that case and the facts of the instant appeal before us. The orders of the Central Government were challenged under Article 226 of the Constitution. The High Court held that the goods were manufactured by the seller as its own goods, and therefore, the wholesale price charged by the seller must form the true basis for the levy of excise duty. On app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under : "11. Shri A. Subba Rao on behalf of the Revenue tried to contend before us that the facts of this case revealed that it was a device to under-charge. The respondent herein was brought in to divide the sale price of M/s. Bush India Ltd. to be the basis of the assessable value. It is true that the facts of this case do warrant a great deal of suspicion. But it is not possible to hold otherwise than that has been held by the High Court in this case. It is true, as Shri Rao drew our attention, that even though the Corporation might be a legal personality distinct from its members, the Court is entitled to lift the mask of corporate entity if the conception is used for tax evasion, or to circumvent tax obligation or to perpetrate a fraud. In this connection, reference may be made to the observations of this Court Juggi Lal Kamlapat v. Commissioner of Income-Tax, U.P. -1969 (1) SCR 988. In the background of the facts found we, however, need not get ourselves bogged with the controversy as to judicial approach to tax avoidance devices as was pointed out in McDowell and Co. Ltd. v. Commercial Tax Officer - 1985 (154) ITR 148, where this Court tried to discourage colourable de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case reported in 1996 (84) E.L.T. 161 in the case of C.C.E. v. Khambatwala has held as under : "7. We have considered the submissions advanced before us by the learned counsel on both the sides. We find force in the arguments of the learned counsel for the respondents : on the admitted facts which we will set out immediately the respondents cannot be considered as manufacturers of agarbatti, amlapodi and dhup etc. manufactured in the premises of house-hold ladies as described above without the aid of power. The undisputed facts are that the respondents supplied raw materials for rolling incense sticks etc. to outside manufacturers and paid wages to them on the basis of number of pieces manufactured. Such manufacture was without the aid of power. There was no supervision over the manufacture. Incense sticks were put in packets and such packets were sold from the premises of the house-hold ladies and they did not go to the factory premises of the respondents. No doubt the sale proceeds went to the respondents but that will not change the character of manufacture. If the conclusion is that the house-hold ladies were the real manufacturers then the decision of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturer. In that case, again at Paras 6 & 7 the Tribunal has held as under : "Shri Malik, SDR invited our attention to the two decisions of the Tribunal in support of the Asstt. Collector's order. The first is the decision in Pawan Biscuit Company Pvt . Ltd. v. C.C.E. [1991 (53) E.L.T. 595 = 1991 (37) ECR 315]. In this case, the Tribunal after consideration of the agreement between the parties and other materials, concluded that the relationship between the supplier of raw materials and the processor was not that of principal and principal but that of principal and agent and, therefore, the processing and manufacture must be taken to have been done by the supplier and not by the processor. Though the clarificatory order of the Supreme Court in Ujagar Prints & Ors. v. U.O.I. & Ors. in 1989 (39) E.L.T. 493 = 1989 (21) ECR 1 (S.C.) = ECR C 1347 SC was cited, no reference was made to the contents of the order. It was held that the Ujagar Prints case judgment reported in 1988 (38) E.L.T. 535 = 1988 (19) ECR 578 (SC) = ECR C 1281 SC was not attracted to the facts of the case. This decision was followed by another Bench of the Tribunal in M/s. Azad Biscuits Co. (P) Ltd. & Anr. v. C.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ware Paints Ltd. was on principal to principal basis. He relied upon several clauses of the agreement in support of this argument and also relied upon two decisions of Supreme Court in Union of India v. Cibatul Limited [1985 (22) E.L.T. 302] and Union of India v. Playworld Electronics Private Limited [1989 (41) E.L.T. 368]. It is argued that several clauses of the agreement in the present case are identical with those considered by the Supreme Court in the two decisions referred to above. Any conclusion to be drawn so far as this question is concerned should depend upon the consideration of the clauses in the agreement by the courts. It was held in Cibatul case by the Supreme Court, on consideration of provisions of the agreement and other material on record, the Department was not correct in rejecting the contention of the assessee that manufacture of the goods in that case was not on behalf of the buyer. Relying upon the ratio in Cibatul case, the Supreme Court held in Play-World Electronics case that the burden is on the Department to establish that the transactions between the assessee and the brand name owner was not on principal to principal basis. In reiterating the test, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . decision of the Supreme Court by observing that in the Pawan Biscuit Co. case under the Agreement, the appellants, therein, cannot destroy the goods which are not up to the specification without meeting the cost of the defective goods. In the other words, the appellants, therein, are liable to pay the cost of raw-material supplied for the goods which are found defective which shows that they have no title to the goods manufactured. We have seen that in the present case, the agreement between the respondents and TOMCO is quite different and there is no stipulation binding the respondents in the Agreement of the nature noticed in the Pawan Biscuits Co. case (supra). It may also be relevant to note a decision of the Bombay High Court in the case of Central Industrial Alliance Ltd. v. Union of India & Others - 1980 (6) E.L.T. 622 (Bom.). That was also a case of manufacture by one party as per the Agreement in this behalf and supply of the finished product to the buyer. Paras 5 & 7 of the High Court decision are reproduced below : "The agreement between the petitioners and the Union Carbide is produced on record at Ex. A to the petition, Clause 7 of this agreement provides that any t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rate because of the reputation of their Brand and that would not necessarily reflect the true value of the articles. In Voltas case, the Supreme Court observed : "If a manufacturer were to enter into agreements with dealers for wholesale sales of the articles manufactured on certain terms and conditions, it would not follow from that alone that the price for those sales would not be the 'wholesale cash price' for the purpose of Section 4(a) of the Act if the agreements were made at arms length and in the usual course of business." "The agreement in the present case clearly establishes that it is at arms length and is entered into in the usual course of business." 10. In the present case also, it can be reasonably concluded having regard to the nature of the clause in the Agreement that it is at arms length and entered into in the usual course of business. Further, it may also be relevant to consider the definition of wholesale dealer occurring in Section 2(k) of the Central Excises & Salt Act, 1944. This definition is as follows : "'Wholesale dealer' means a person who buys or sells excisable goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturing cosmetics falling under Central Excise Tariff 3304.00. They are availing modvat facility. 2. Whereas M/s. J.B. Advani & Co. (Mys.) Ltd. have manufactured and cleared cosmetics viz. 'Dream Flower Talc' & 'Sandal Talc' to M/s. Ponds (I) Ltd. All the products manufactured have been supplied to depots of Ponds (I) Ltd. only. They have paid duty on the value of goods at which the same were supplied to M/s. Ponds (I) Ltd. depots. 3. Whereas the said value adopted does not appear to be the normal price under Section 4 of the Central Excise and Salt Act in as much as : (i) the transaction between M/s. J.B. Advani & Co. and the Ponds depots does not represent sale in the course of the wholesale trade. Further, wholesale trade requires the existence of a wholesale dealer defined under Section 4(4)(a) of the Central Excise and Salt Act, 1944; and (ii) the good are delivered on the instructions of Ponds to their depots and they are not available for by anyone except M/s. Ponds (I) Ltd. In other words, they are not freely available to all the wholesale dealers. Therefore, the sale is not at arms length. 4. Whereas it appears that as the normal price cannot be det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice stating that the agreements are not genuine. The mere fact that the goods are supplied wholly to M/s. PIL is not sufficient to hold otherwise as per the decision cited supra. 37. In this connection it is to be noted that in the previous order of the CCE (A) in Order No. 78/92, dated 22-6-92, the CCE (A) had clearly held that on the basis of the very same agreement the transaction between the parties are at arms length and on principal to principal basis. He has given a clear finding that both the appellants and the PIL have no interest in the business of each other. He therefore, held that the price charged by the appellants alone should form the basis for assessment. This decision of the CCE (A) dated 22-6-92 was not taken up in appeal and it had acquired finality. It is thereafter on the basis of the similar agreement the AC issued the present show cause notice dated 22-5-95. Therefore, the Tribunal should look into these two orders of the CCE (A) at least to come to the conclusion as to which order is correct. 38. It is now seen that the decision of the Hon'ble Supreme Court in the case of Ujagar Prints etc. v. U.O.I. in the clarificatory order ..... 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