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TMI Blog1985 (4) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... e of cement in terms of S. 4(4) (d) of the Act or excluded on the ground that these are of a durable nature and are returnable by the buyer to the Assessee ? and (ii) if the order of the Hon ble Supreme Court dismissing S.L.P. (Civil) No. 11044-45 of 1980 is res judicata in these proceedings ? 2. The hearing of this Appeal was adjourned on a number of occasions to await the judgment of the Supreme Court on the issue of durable and returnable packing. Since, however, in our view, the second of the aforesaid questions is crucial and conclusive, in the facts and circumstances of the case, we proceeded to decide this Appeal, without touching the first question and the various submissions made in regard to it. 3. The facts, in so far ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cost of packing in the return submitted for that month (Annexure G to the Revision Application); (e) on protest by the Appellant (Annexure H to the Revision Application), the Assistant Collector confirmed the demand by his Order dated 7th August, 1976 (Annexure I to the Revision Application) (f) on appeal to the Appellate Collector, the Adjudication Order was upheld on 24-12-1976 (Annexure J to the Revision Application) ; (g) the Revision Application, now heard as an Appeal, was the sequel ; (h) the first question supra was decided on 18-2-1980 in the Madhya Pradesh High Court in Writ Petition (No. 363 of 1976) filed by the Appellant herein, in respect of the Satna unit (reported in 1980 ELT 593 - Birla Jute Manufacturing Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de and on perusal of the records and otherwise, it would appear to us that :- (a) the Respondent s reliance on 1981 E.L.T. 328 supra, was misplaced. It is not correct to say that the decision is an authority for the proposition that the principle of res judicata is totally inapplicable to tax matters. The ratio of the said decision, if properly understood, is quite to the contrary. It was categorically laid down therein that, while it has been held that the principle of res judicata as such will not apply in tax matters, still, an earlier decision on any issue, inter partes, in a previous assessment year is a cogent factor in the determination of the same issue in a succeeding year, unless there are good and cogent reasons for coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Writ Petition decided, ultimately, by the Supreme Court in SLP is the Appellant before us owning the unit at Chittorgarh as well. It is the Birla Jute Manufacturing Co. itself that carries on business even in Chittorgarh in the name and style of Birla Cement Works. When, once this is so, the mere requirement of separate licences for manufacture for different units located within the jurisdiction of a plurality of excise collectors for administrative convenience, does not, ipso facto, mean and imply that such units, each one of them, independent of the other, are the owner of all of them. Unless it is established that the Birla Cement Works at Chittorgarh had, during the relevant period, an independent corporate existence altogether sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Court of Appeal is to confirm the decision of the Court below given on merits; [AIR 1966 SC 1322 - Sheodhan Singh v. Daryao Kumar]; (iv) were it not so, the result would be that even though the decision of the Trial Court given on merits is confirmed by the dismissal on a preliminary ground, there can never be res judicata. The finality in the decision of any adjudicating forum can be destroyed by the simple expedient of lodging an appeal, which is later allowed to be dismissed in default of appearance or on same preliminary issue [AIR 1966 SC 1322]. 6. For the aforesaid reasons, we find no substance in the contention of the Respondent that the principle of res judicata did not govern the instant proceedings. Without, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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