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TMI Blog2010 (1) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... y (in Rs.) 1. 3/94-95 27-10-1994 35.550 6,75,450/- 1,01,317.00 2. 6/94-95 21-11-94 36.425 6,92,075/- 1,03,811.25 3. 10/94-95 19-12-1994 27.195 5,16,705/- 77,505.75 4. 11/94-95 19-12-1994 26.865 5,10,435/- 76,565.25 5. 12/94-95 29-12-1994 26.810 5,09,390/- 76,408.60 6. 13/94-95 29-12-1994 25.765 4,89,535/- 73,430.25 7. 14/94-95 29-12-1994 28.460 5,40,740/- 81,111.00 8. 15/94-95 6-1-1995 24.835 4,71,865/- 70,779.00 9. 16/94-95 17-1-1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 107/97, dated 5-12-1997 decided all the show cause notices and discharged the show cause notices. 2.3 The department filed the appeal against order-in-original to Commissioner (Appeals), Central Excise, Bhopal vide C.No. V(21) 321/97/R T/ 28489, dated 19-11-1998. The Commissioner (Appeals), Customs Central Excise, Bhopal rejected the appeal vide order-in-appeal No. YPP/136/M-III NGP/2001, dated 24-1-2001. 2.4 The department filed the appeal against the above order-in-appeal to Appellate Tribunal, Mumbai. The Hon ble Tribunal, Mumbai remanded the case under Order No. A/1053/WZB/06/C-III/EB, dated 22-7-2005 through F. No. E/1531/01, dated 22-6-2006 with direction to rehear and decide the appeal filed by the Department on merits, in accordance with law. 2.5 The Commissioner (Appeals) Central Excise, Nagpur vide impugned order-in-appeal No. SVS/468/NGP-C/2006, dated 30-11-2006 dismissed the departmental appeal holding that the matter for the same period and same amount had already been decided by the Joint Secretary (R) in his revision order under Section 35EE bearing No. 310/2006, dated 28-9-2006. The impugned order-in-appeal passed by the Commissioner (Appeals), Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, GOI has set aside order-in-original and order-in-appeal and remanded the case back to the original authority for ascertaining the proof of export from the authority who had accepted the Bond and suggested to him possible course of action, if required, depending on the facts of submission/non-submission of proof of export. 3.5 Further, the merchant-exporter executes the Bond with Maritime Commissioner for the purpose of export and required amount of Block Transfer is made in favour of manufacturer from whose unit the goods are being exported covering the duty amount involved in the export. The manufacturer produced the Block Transfer before the jurisdictional Range Officer for clearance of exported goods under Bond. Since, the proposal for export of goods is made by manufacturer along with Bond, the liability is goes to manufacturer to submit the proof of export. The Merchant Exporter generally does not approach the jurisdictional A.C. or R.O. for proposing the export of goods and providing the Bond for export. The AR-4 are also to be signed by the manufacturer and Merchant Exporter being the goods are exported from the premises of manufacturer. So the liability of producing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8]. As we have said overruling of a decision takes place in a subsequent lis where the presidential value of the decision is called in question. No one can dispute that in our judicial system it is open to a court of superior jurisdiction or strength before which a decision of a Bench of lower strength is cited as an authority, to overrule it. This overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate. But in tax cases relating to a subsequent year involving the same issue as an earlier year, the court can differ from the view expressed if the case is distinguishable or per incuriam. The decision in State of U.P. v. Union of India [2003 (3) SCC 239] related to the year 1988. Admittedly, the present dispute relates to a subsequent period. Here a coordinate Bench has referred the matter to a Larger Bench. This Bench being of superior strength, we can, if we so find, declare that the earlier decision does not represent the law. None of the decisions cited by the State of U.P. are authorities for the proposition that we cannot, in the circumstances of this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of incomplete reading of the decision inasmuch as in Para 5 of the decision the Govt. of India has decided the issue as to who is competent to issue a show cause notice for recovery of duty and as to who is liable to pay the same in cases of failure to export when the export through Merchant Exporter. The relevant observations are reproduced below : 5. That being so, the question as to which authority is empowered to enforce the terms of the bond for the recovery of Central Excise Duty, is plainly the authority with whom the said bond was filed and accepted. All that the officers of the factory of clearances, as in obtained now, could do is to intimate the proper officer before whom the bond was executed about non-receipt of proof of exports at their end (by giving the details of the clearance documents); alternatively if time was running out, issue show cause notice answerable to the bond accepting authority and forward to that authority complete details of clearances effected for taking appropriate action in the matter at his end. However, the Asstt. Commissioner in charge of the factory of clearance for export could not be taken upon himself in demand duty or impose penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner, an appeal against the above-mentioned order was filed by the Asstt. Commissioner (R T), Central Excise, Nagpur. 7. 24-1-2001 The Commissioner (Appeals), Customs Central Excise, Bhopal vide his order-in-appeal No. YPP/136/M-III NGP/2001 dismissed the appeal filed by the Department on the ground that the order challenged was passed by the Dy. Commissioner (T), Central Excise, Nagpur and authorization was given to an authority different than the adjudicating authority. 8. 22-7-2005 The above-mentioned order was challenged by the Department before the CESTAT, Mumbai which by its order No. A/1053/WZB/06/C-III/EB, remanding the matter to the Commissioner (Appeals). 9. 8-6-1998 In the meantime, a fresh show cause notice was issued by the Dy. Commissioner (Tech.), Central Excise, Nagpur for recovery of duty of ₹ 8,12,492/-. 10. 29-10-1999 The show cause notice was adjudicated by the Joint Commissioner (Adj.) vide order-in-original No. 34/35/99 confirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Addl. Commissioner again passed an order confirming the total demand of duty of ₹ 8,12,492/- and imposing equal penalty on the appellant under Rule 14A of the erstwhile Central Excise Rules. 21. 25-8-2005 The above-mentioned order was challenged before the Commissioner (Appeals), Customs Central Excise, Nagpur who vide his order-in-Appeal No. SVS/293/NGP-C/2005, dated 25-8-2005, considering the Board s Circular No. 87/87/94, dated 26-12-04 as well as relying on the Tribunal s decisions in the cases of Kishore Pumps Ltd . v. Commissioner of Central Excise, Pune , reported in 2004 (173) E.L.T. 45 (Tri.-Mumbai) and M.J. Pharmaceuticals Ltd. v. Commissioner of Central Excise Customs, Vadodara , reported in 2000 (122) E.L.T. 178 (Tribunal) allowed our appeal holding that the duty liability if any is on the Merchant Exporter i.e. M/s. Akai Impex Ltd. and there was no liability with us in the case. 22. -- The above-mentioned order was challenged by the Department before this Hon ble Authority and the same was registered as revision application No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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