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TMI Blog2015 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... final. Yet, the Tribunal omits to consider them. Rule of judicial discipline requires reference being made to a larger bench in case of differences of opinions or views between the benches of the Tribunal on identical facts. A healthy way of deciding matters and to maintain purity and sanctity of the judicial process is emphasized by this Court in Mercedes Benz (2010 (3) TMI 300 - BOMBAY HIGH COURT) and relying upon the judgment of the Hon'ble Supreme Court of India. This binds the Tribunal. We have also cautioned the Tribunal in number of cases that the process of adjudication and in Revenue matters requires an early finality to vexed issues. If the issues are raised repeatedly then all more there ought to be certainty and end to the litigation. - Order of Tribunal is set aside - Decided in favour of assessee. - CIVIL WRIT PETITION NO.279 OF 2015 with CENTRAL EXCISE APPEAL NO.179 OF 2014 - - - Dated:- 20-1-2015 - S.C. DHARMADHIKARI SUNIL P. DESHMUKH, JJ. Mr. V. Sreedharan, Senior Counsel a/w. Mr. Prakash Shah and Akhilesh Rangsia i/b. PDS Legal, for the Petitioner/Appellant Mr. Y.S. Bhate i/b. Mr. Kirankumar Phakade, for the Respondent ORAL JUDGMENT : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testing and repacking purposes. The appellants have stated as to how the job work assigned to them has been carried out and they claimed that the process of purification of Hexane and Petroleum Ether as well as that of repacking from bulk to smaller/retail packs does not amount to manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944. The appellants claimed that these purified Hexane and Petroleum Ether obtained from duty paid Hexane and Petroleum Ether are cleared from the factory of the appellants in the name of grades such as Guaranteed Reagent Hexane for Chromatography Lichrosolv grades. 5. The appellants have described the entire process and which they claim as job work on and of M/s. Merck. We need not advert to those details and which are set out till page9 of the appeal paper book (para6.5). 6. The appellants pointed out that in the past the Revenue had sought recovery of duty on the reprocessed and repacked Hexane and Petroleum Ether relying upon the erstwhile Central Excise Rules, 1944 and the Central Excise Rules, 2002 prevalent at present. The appellants have been registered with the Department in terms of both the earlier and the preval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008. That show cause notice proposed to demand Central Excise duty in the sum of ₹ 2,34,81,983/under Section 11A(1) of the Central Excise Act, 1944. This was on the clearance of the purified Hexane and Petroleum Ether from January, 2003 to November, 2007. Even interest was also claimed and the notice also proposed to impose penalty. 7. We do not wish to go into the contents of the show cause notice and equally the response of the appellants thereto which is contained in the letter dated 27th July, 2008. Pertinently an adjudication order was passed rather which could be said to be an order discharging or dropping the proceedings. That order dated 31st March, 2009 was subject to some scrutiny by the committee of the Chief Commissioner of Central Excise and had decided to prefer an appeal against the said order. That appeal came to be preferred before the Appellate Tribunal. The Appellate Tribunal passed an order and proceeded to uphold the claim of the Revenue. That order dated 28th March, 2014 is impugned in the Central Excise Appeal. 8. In the Writ Petition what has been impugned is the order dated 12th September, 2014 on an application which is preferred by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Tribunal's impugned order dated 28th March, 2014 and para 5 thereof. The Tribunal in the further paragraphs has not commented about the correctness of the conclusion recorded earlier. Mr. Sreedharan, therefore, has essentially based his arguments on the principle of finality of judgment and rule of precedents. He submits that if the Tribunal is shown an earlier order passed by it taking a particular view on the same issue or question, then, it is the bounden duty of the Tribunal to refer to its own findings and then conclude as to whether they bind it in the successive or second round or is there is reason to hold that these findings have lost their binding nature. However, this cannot be a mere ipse dixit or a bare conclusion but reasons would have to be assigned which must stand the scrutiny by a higher Court. Mr. Sreedharan would submit that the earlier order if brought to the notice of the Tribunal and relied upon so as to support the argument that it is identical on facts and in law, then, the Tribunal must advert to it in details. It must advert to the legal principles referred above. It must then conclude whether on account of any changes in law or because the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting to manufacture. The Tribunal has assigned reasons for its factual conclusion that a new product has merged having a distinct character, name and use after various processes undertaken by the appellants. That would attract Section 2(f) of the Central Excise Act, 1944. Mr. Bhate would rely on the conclusion reached by the Tribunal and the decisions of the Hon'ble Supreme Court in the case of Pio Food Packers reported in [1980 (6) ELT 343 (SC) and in the case of Empire Industries Ltd. reported in 1985(20) ELT 179 (SC) to support the Tribunal's order. Mr. Bhate specifically relied upon the factual conclusion of the Tribunal that the value addition which the appellant has achieved on account of these processes is of 200% which is substantial and which is not achievable in mere repacking. In such circumstances, he would submit that both the proceedings deserve to be dismissed. 14. We have with the assistance of learned Counsel appearing for the parties perused the appeal paper book and which we find is sufficient for a decision in the present proceedings. Our conclusion rendered in this Central Excise Appeal would not require us to pass a separate order in the Writ Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss was undertaken and mere repacking from bulk to smaller/retail packs would not amount to manufacture . The reliance was placed on the appellants own case where the duty was demanded but the proceedings were discharged / dropped by an order in Appeal, dated 26th September, 1994 and which was upheld by the Tribunal's final order dated 12th October, 1998. Thus, this is a case which is identical to M/s. E. Merk (i) Ltd., was the essential argument before the Tribunal. There was an alternative argument and which has been noted in para5 of the Tribunal's order. 18. However, we have extensively referred to para6.1 of the Tribunal's order passed on 28th March, 2014 and impugned in this appeal only to highlight that we find no reference therein being made to the facts emerging from the record in the case of M/s. E. Merk (i) Ltd.,, order dated 26th September, 1994 relied upon and equally the Tribunal's earlier order dated 12th October, 1998. We do not find that the Tribunal has distinguished its earlier order in the case of M/s. E. Merk (i) Ltd. heavily relied upon by the appellants for the reason that it is not identical to the present facts and circumstances. We also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, however glamorous it is, has its own limitation on the Bench. In a multijudge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter should be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. In our system of judicial review which is a part of our Constitutional scheme, we hold it to be the duty of the judges of the courts and members of the tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behavior. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st for having carried on manufacturing activity in their premises. The product or goods in relation to which the allegations are made are identical. The Tribunal upheld the arguments of E.Merck and allowed its Appeal. That order was relied upon by the appellants in the proceedings against them. They succeeded before the Commissioner. The Tribunal does not make any reference to all this and does not deem it necessary to consider the arguments based on its earlier orders. These orders were stated to be final. Yet, the Tribunal omits to consider them. We are not impressed by the argument of Mr. Bhate that though the assessee cited before the Tribunal the decision in its own case or rather in the case of M/s. Merk Specialities Pvt. Ltd. or M/s. E. Merk (i) Ltd., the judgment of this Court in the case of Mercedez Benz (supra) was not brought to the notice of the Tribunal. It is surprising that the Tribunal has to be shown on this elementary or basic point any judgment as it is its bounden duty in law to have adverted to an order passed by it or its coordinate bench on the same point, may be in earlier round of litigation. If it is relevant to the adjudication in the present appeal, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to the notice of all concerned including the appointing authorities. 20. In the light of the above, we are required to quash and set aside both orders of the Tribunal. The Appeal succeeds. The order passed by the Tribunal on 28th March, 2014 and 12th September, 2014 both are quashed and set aside. The Revenue's appeal now shall be reheard by the Tribunal on merits and in accordance with law uninfluenced by its earlier conclusions. 21. The Tribunal must render a decision after dealing with all the contentions which have been raised by the parties. It should permit the appellants to rely upon the earlier adjudication and also bring to its notice the factual matrix involved therein. It must also allow the assessee an opportunity to rely upon the legal provisions and the judgments relevant to the same. Equally, such an opportunity must be given to the Revenue and if it desires distinguishing the earlier adjudication in the case of M/s. E. Merk (i) Ltd. on facts or on law, the requisite material in that behalf will have to be produced and relied upon by the Revenue. The Revenue is also free to urge before the Tribunal that even if in the earlier round the Tribunal has consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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