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TMI Blog2010 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... aid to consultants for construction, soil testing and labour, as well as credit of duty paid on the air-conditioners etc., was concerned, it was held that CENVAT credit of duty paid in respect thereof was admissible - order of the Tribunal does not suffer from any legal infirmity so as to warrant interference – Appeal dismissed - 737 OF 2009 - - - Dated:- 5-5-2010 - D.A. MEHTA AND MS. H.N. DEVANI, JJ. ORDER Ms. H.N. Devani, J. Appellant-revenue has challenged order dated 30-9-2008 made by the Customs, Excise and Service Tax Appellate Tribunal ( the Tribunal ) proposing the following three questions : (i) Whether Hon ble CESTAT has committed error in interpreting the provisions of CENVAT Credit Rules while holding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent to show cause as to why the wrongly availed credit should not be disallowed and recovered under rule 14 of the CENVAT Credit Rules, 2004 ( the Rules ) read with sections 68 and 73 of the Act with consequential penal action under the relevant provisions of the Act and the Rules. The adjudicating authority confirmed the duty of demand to the tune of Rs. 12,79,33,722 along with interest and penalty of identical amount in terms of rule 15 of the Rules, read with section 78 of the Act and under sections 76 and 77 of the Act. 3. The respondent carried the matter in appeal before the Tribunal. Vide the impugned order, the Tribunal confirmed the demand in relation to cement and steel as well as service tax paid on club house fees, whereas i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent had already been subject-matter of challenge in relation to another period and had been held in favour of the respondent by Commissioner (Appeals), which decision has not been carried further by the assessee, the Tribunal was justified in relying upon the same and deciding in favour of the respondent. It is settled legal position as held by the Apex Court in the case of Radhasoami Satsang v. CIT [1992] 193 ITR 321 (though in the context of the Income-tax Act), that : strictly speaking, res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permitting through the different assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said finding of fact on the ground of perversity, the same does not give any rise to any question of law. 7. Insofar as the principle laid down by the Apex Court in case of C.K. Gangadharan (supra) is concerned, there can be no dispute as regards the general proposition of law enunciated by the Apex Court. However, the Apex Court has not laid down that in case of the same assessee, if identical transaction for earlier period has not been taxed either at the original stage or after being assessed to tax has been held to be not taxable in appeal proceedings, it would be open to revenue to re-agitate the same issue without either challenging the earlier order of the appellate authority or pointing out any difference in facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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