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TMI Blog2012 (10) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... clusively in respect of excisable goods as directed by the Tribunal in the earlier remand matter – in favour of assessee by way of remand. - Excise Appeal No.2213 of 2011 - A/322/2012 - EX(BR) - Dated:- 23-2-2012 - Archana Wadhwa, Mathew John, JJ. For Appellant: Shri B L Narasimhan, Adv. For Respondents: Shri R K Verma And Shri Sumit Kumar, SDRs Per: Archana Wadhwa: After dispensing with the condition of pre-deposit of dues, we proceed to decide the appeal itself inasmuch as we find that the lower authorities, while passing the present impugned orders in de novo proceedings have not carried out the directions of the Tribunal's earlier decision vide which the matters were remanded. 2. For better appreciation of sequence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was upheld by the Ld. Commissioner (Appeals), vide order dated 16.12.2008. e). On appeal by the appellant against the order of Ld. Commissioner (Appeals) in the present case, vide Final Order No. 414/2009-Ex dated 15.06.2009, Hon'ble CESTAT allowed the deductions on equalized basis, following their decision vide order dated 30.04.2009 (supra), and remanded the matter to the original authority to allow deduction on the lines indicated in the order dated 30.04.2009. The issue, whether assessment was provisional or not was also directed to be decided afresh. f) In a Rectification of Mistake application filed by the appellant, vide Misc. Order No. 62/2011-Ex dated 20.01.2011, the Hon'ble CESTAT modified the order dated 15.06.2009 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Hon'ble CESTAT and also of the Hon'ble High Court. The impugned orders are contrary to the binding directions of the Hon'ble CESTAT and also of the Hon'ble High Court and are beyond the scope of the order of remand. j) Vide the impugned orders, the Ld. Assistant Commissioner as well as the Ld. Commissioner (Appeals) have also held the assessments to be provisional, contrary to the express provisions of the Central Excise Rules." 3. Learned advocate appearing for the appellant has drawn our attention to the Tribunal's decision vide which the matters were remanded. It is seen that vide Final Order No. 414/09-Ex dated 23.6.09 , Tribunal took note of the earlier decision in the case of other unit of the same appellant and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EC Circulars. C.B.E C Circular F.No.354/81-2000-TRU, dated 30.6.2000 Circular F.No. 643/34/2002-CX, dated 1.7.2002, I find that Board's Circular No. 20/90-CX.1 dated 30.8.90 provides for deductions on account of average taxes for the period covered in the Old Valuation Rules, CBEC vide circulars F.No. 354/81-2000-TRU dated 30.6.2000 Circular F.No. 643/34/2002-CX, dated 1.7.2002 has denied the deductions on account of average taxes in the new Valuation Rules, 2000. Even after the judgement of the Apollo Tyres supra the instructions of the Board on the issue of deductions of average taxes are unchanged/not withdrawn i.e. no deductions are allowable on this account. The Hon'ble Supreme Court in the catena of judgements has directed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to again decide the matter on the legal principle of availability of deductions on account of equalised basis and to prefer Circulars over the Tribunal's decision. 7. It may not be out of place to mention here the decision of the Supreme Court in the case of CCE vs. Usha Martin Industries [1997 (94) ELT 460 (SC) as also in the case of Ranadey Micronutrients vs. CCE, [1996 (87) ELT 19 (SC)] , relied upon by the adjudicating authority are not applicable to the facts of the instant case inasmuch as in those cases it stands held that Circulars issued in favour of the assessee are binding on the Departmental officers who cannot argue the same. In any case, there was no Tribunal's order in those case which was referred to and in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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