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TMI Blog2010 (9) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the case of Beauty Dyers (supra) – Order sustainable - 58 of 2009 - - - Dated:- 21-9-2010 - V.C. Daga and R.M. Savant, JJ. REPRESENTED BY : S/Shri R.V. Desai, Sr. Advocate with R.B. Pardeshi, for the Appellant. S/Shri Manoj Sanklecha with A.M. Sethna i/b. S.D. Bhosale, for the Respondent. [Judgment per : V.C. Daga, J.]. - This appeal is directed against the order passed by the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Mumbai ("Tribunal" for short) dated 5th March, 2008. This appeal was admitted vide order dated 23rd September, 2009 to consider the following substantial question of law : "Whether the Hon'ble Tribunal erred in holding that Notification No. 42/98-C.E. (N.T.), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of the assessee was determined at Rs. 9,14,000/-. 5. The demand raised on the above basis was confirmed by the Joint Commissioner, the adjudicating authority. The duty liability was quantified at Rs. 11,98,839/- vide order dated 23rd February, 2001. The adjudicating authority had also directed payment of interest and imposed penalty on the respondent-assessee equal to the amount of duty. The Commissioner (Appeals), vide his order dated 30th May, 2001, upheld the said order of the adjudicating authority. 6. Aggrieved by the aforesaid order-in-appeal, respondent-assessee carried appeal to the Tribunal. The respondent during the course of hearing brought to the notice of the Tribunal, a judgment of the Madras High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... needs to be examined by this Court independently bereft of the judgment of the Madras High Court. He placed reliance on the order of the Apex Court in the case of Commissioner of C.Ex., Gujarat v. Roop Textiles Mills Ltd., 2007 (213) E.L.T. 486 (S.C.) in support of his submission. 10. Per Contra, Mr. Sanklecha, learned counsel for the respondent urged that the question involved in this case is : whether or not the Tribunal was justified in relying upon the judgment of the Madras High Court. In his submission, the judgment of the Madras High Court in case of Beauty Dyers (supra) was very much binding on the Tribunal. The Tribunal could not have brushed aside the said judgment of the Madras High Court since there was no other judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Gujarat High Court. According to Mr. Sanklecha, in the circumstnaces, it was obligatory on the part of the Gujarat High Court to decide the question referred for their opinion bereft of the decision of the Madras High Court, consequently, the matter was rightly remanded to the Gujarat High Court with direction to determine the question of law referred, whereas in the case in hand altogether different question is involved. Mr. Sanklecha, thus, tried to distinguish the order of the Apex Court and contends that it is not applicable to the facts of this case. Consideration : 13. Having heard rival contentions, the submissions made by Mr. Sanklecha need acceptance. In the case of Smt. Godavaridevi Saraf (supra), the Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Tribunal sitting at Madras is bound to proceed on the footing that Section 140A(3) of the Act is non-existent in view of the pronouncement of the Madras High Court in the case of A.M. Sali Maricar MANU/TN/0392/1972 : [1973] 90 ITR 116 (Mad). Actually, the question of authoritative or persuasive decision does not arise in the present case because a Tribunal constituted under the Act has no jurisdiction to go into the question of constitutionality of the provisions of that statute. It should not be overlooked that the Income-tax Act is an All-India statute and if an Income-tax Tribunal in Madras, in view of the decision of the Madras High Court, has no proceed on the footing that Section 140A(3) was non-existent, the order of penalty there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed thereunder cannot be sustained." (Emphasis supplied) 14. The question involved in the present case is : whether the Tribunal was justified in following the judgment of the Madras High Court in the case of Beauty Dyers (supra). The Tribunal in the impugned order did not examine issue relating to the validity of the Notification No. 42/98 because the Tribunal had no jurisdiction to examine the subject issue. On its independent consideration, it did not come to an independent conclusion that the said notification is ultra vires the provisions of the Act. The Tribunal has merely followed the judgment of the Madras High Court which was binding on the Tribunal in view of the law laid down by the learned Division Bench of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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