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TMI Blog2006 (11) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, we are satisfied that a second look is necessary by the Tribunal in the light of non-consideration of material on the statute and the case laws. Hence, we deem it proper to set aside the order without answering the questions of law for re-decision by the Tribunal. 5. Accordingly, the appeal is allowed. Impugned order is set aside. Parties are to appear before the Tribunal without waiting for any notice on 28-9-2006. Liberty is reserved to both parties to File such case laws or such additional material as may be necessary before the Tribunal. The Tribunal is directed to consider the existing material plus additional material and thereafter proceed to pass appropriate order in accordance with law without in any way being influenced by its earlier order or by this order. No opinion is expressed on the merits of the matter. The Tribunal is directed to complete the proceedings on or before 31-12-2006. Ordered accordingly. No costs." 3.The facts of the case and the submissions of the learned Advocate were furnished in the Final Order No. 1433/2005 dated 24-8-2005. They are reproduced below :- "2.The facts of the case are as follows. With effect from 9-7-2004, tractors were ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mugavel Nadar v. State of Tamil Nadu. (f) The adjudicating authority erred in applying the decisions of the Tribunal in the case of Albert David and Explicit Trading Marketing (P) Ltd. The said decision was per incurium and the Tribunal had failed to apply the decision of the Supreme Court rendered in the case of Dai Ichi Karkaria. (g) The adjudicating authority was not correct in relying upon the Circular dated 28 July 2004 issued by the Board. As a quasi-judicial authority, he is not bound by the instructions of the board. (h) In view of the above, the penalty imposed is not at all justified. 7.The learned departmental representative urged the contentions in the Order-in-Original." 4.In view of the Hon'ble Karnataka High Court's observations, we are giving our findings. 4(a).Consequent to the order dated 29th August 2006 of the Hon'ble High Court of Karnataka, hearing was accorded to both sides today. During the hearing, the learned Advocate, apart from reiterating his earlier contentions, stated that the Apex Court dismissed the Civil Appeal filed by M/s. Albert David Ltd. against the CEGAT order without a speaking or reasoned order. Therefore, the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Larger Bench in the case of CCE, Rajkot v. Ashok Iron Steel Fabricators - 2002 (140) E.L.T. 277 (Tri. - LB). The issue was referred to the Larger Bench in view of conflicting decisions of two High Courts viz. Allahabad High Court and Kerala High Court. The Kerala High Court rendered a decision following a decision of the Apex Court in CCE, Pune v. Dai Ichi Karkaria Ltd. - 1999 (112) E.L.T. 353 (S.C.). A 5-Members Bench considered the issue in the Ashok Iron case. In the said case, the respondent was manufacturing both Kerosene Wick Stove as well as parts of Kerosene Wick Stove. The Kerosene Wick stove was wholly exempted by a Notification dated 1-3-1994. But, the parts which were also end products of the respondent were not granted exemption. Subsequently, the parts captively consumed were exempted under Notification No. 10/96-C.E. dated 23-7-1996. The respondent had obtained Central Excise licence since parts of the stove were not exempted prior to 23-7-1996. The respondent worked out the stock of inputs lying with them aggregating to 12,17,473/- as on 22/23-7-1996 and accordingly reversed an amount of Rs. 2,01,261/- vide RG 23A, Part-II Entry dated on 9-8-1996 and an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icators [2003 (156) E.L.T. A212 (S.C.)] case. Those observations of the Apex Court are reproduced below : "It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgement thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Larger Bench in the Ashok Iron case. The learned Advocate pointed out that the decision of the Supreme Court in the Dai Ichi Karkaria case is the law laid down by the Supreme Court under Article 141 of the Constitution. 5.5The learned Advocate drew our attention to the decision of Kunhayammed v. State of Kerala (cited supra) wherein on the question of the Doctrine of merger and the character of a binding precedent under Article 141 of the Constitution of India, it has been held that if the petition to the Supreme Court is dismissed (or dismissed on merits), at the stage of special leave without a speaking or reasoned order, there is no res judicata, no merger of the lower order and the petitioner retains the statutory right, if available of seeking relief in review jurisdiction of the High Court. He wanted to emphasise the point that in the case of the Civil Appeal filed by Albert David Ltd. against the CEGAT order, the Apex Court dismissed the same in view of the fact that the dismissal is without a speaking or reasoned order. There is no merger and it cannot be said that the decision in Albert David case is a declaration of law under Article 141 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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