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TMI Blog2019 (7) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court because the Trial court had decided all the four suits on merits, including the decision on the common issues. It would also be useful to refer to the decision of the Supreme Court in NARAYANA PRABHU VENKATESWARA PRABHU VERSUS NARAYAN PRABHU KRISHNA PRABHU ORS. [ 1977 (1) TMI 163 - SUPREME COURT] . Two suits were filed in this case and thereafter two appeals were filed against the decrees of the Trial Court. The High Court heard both the Appeals together and decided the common issue resulting in two decrees, but only one appeal was filed in the Supreme Court. It is in this context that the plea of res judicata was raised. The Supreme Court dismissed the appeal that was filed on the ground of res judicata. In the present case, the Commissioner (Appeals) decided three appeals by a common order in favour of the assessee. The Revenue initially assailed all the three orders but by filing one appeal before the Tribunal. Subsequently, in view of the application filed by the Revenue, two appeals were dismissed as withdrawn. The present appeal before the Tribunal is confined to only one order passed by the Commissioner (Appeals) - Though res judicata may not strictly appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed these materials for the manufacture of SS Utensils. It was, therefore, alleged that the goods were required to be valued as per Rule 9 read with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 (hereinafter referred to as 2000 Rules). 4. The reply field by the Respondent was not accepted by the Adjudicating Authority and, therefore, the demand was confirmed by three separate orders bearing No. 8/2014, No.16/2015 and No.17/ 2015. The respondent was also directed to pay interest and penalty was also imposed. 5. Feeling aggrieved, the respondent filed three appeals before the Commissioner (Appeals), namely Appeal No. 315/2017, Appeal No. 316/2017 and Appeal No. 317/2017. These three appeals were decided by a common order dated 30 November, 2017 by the Commissioner (Appeals). It was noticed that all the goods had not been sold to the related person as .75% had been sold to other buyers. It was, therefore, observed that Rule 9 would not be applicable since it is only when hundred per cent sale was to a related person, that Rule 9 would apply. All the three Appeals were, accordingly, allowed and the three impugned orders passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 passed by the Commissioner (Appeals) in so far as it allowed the appeal filed by the assessee for quashing order no. 17/2015. 10. Learned Authorized Representative of the respondent again pressed the preliminary objection raised earlier, but learned Representative of the Department sought time to prepare the matter. 11. The matter was, accordingly, adjourned to 22 April, 2019. Today, the learned Representative of the respondent has raised the following preliminary objections: (i) The three show cause notices relate to the same issue but for different periods from November, 2011 up to October, 2013 and were adjudicated by three separate orders bearing No. 8/2014, 16/2015 & 17/2015. The demand was confirmed as a result of which three Appeals bearing No's 315/17, 316/17 and 317/17 were filed. All the three appeals were allowed by a common order dated 30 November, 2017; (ii) Though three separate appeals were required to be filed by the Department, but the Department filed only one appeal to assail the order passed in the three appeals filed by the respondent; (iii) During the pendency of the appeal an application was filed by the Department with a prayer that this Appeal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of charging duty of excise would be computed under Section 4 of the Central Excise Act, 1944 read with Rule 4 of the 2000 Rules or under Rule 9 of the said Rules. This would necessarily depend on whether the respondent was supplying the product to a person who was related because it is only in such a situation that Rule 9 would be attracted. The Adjudicating Authority found that Rule 9 would be applicable and, therefore, the demand was confirmed. Three separate orders bearing No's. 8/2014, No. 16/2015 and 17 of 2015 were, accordingly, issued confirming the demand. 15. This led to the filing of three separate appeals by the Respondent-assessee. All the three appeals were allowed by a common order dated 30 November, 2017. The Appellate Authority found that the provisions of Rule 9 would not be applicable to the clearance of the goods made by the respondent to M/s Sunshine Steel Industries since some portion of the goods were also sold to other buyers. The impugned orders passed by the Adjudicating Authority that were assailed in the three appeals, were set aside and the three appeals were allowed. 16. The order dated 30 November, 2017 passed by the Commissioner (Appeals) in the th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Additional Civil Judge indicated that there were five issues common to all the four suits. `The main point raised in these common issues was whether Harnan Singh and his adopted son Ram Kishan were joint with the appellant and his father and whether Ram Kishan died in a state of jointness with them. This main issue was decided against the appellant and his father. Four appeals were, therefore, filed. Two Appeals were dismissed by High Court for the reason that the first was time barred and in the other appeal the Appellant had not taken steps to prepare the paper book, as was required by the Rules of the High Court. The High Court dismissed the two appeals that remained pending as being barred by res-judciata, since the five issues were common in the four consolidated appeals. In this context the Supreme Court observed:- "20 (A) A consideration of the cases cited on behalf of the appellant therefore shows that most of them are not exactly in point so far as the facts of the present case are concerned. Our conclusion on the question of res judicata raised in the present appeals is this. Where the trial court has decided two suits having common issues on the merits and there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Supreme Court in Venkateswara Prabhu v. Krishna Prabhu reported in AIR 1977 SC 1268. Two suits were filed in this case and thereafter two appeals were filed against the decrees of the Trial Court. The High Court heard both the Appeals together and decided the common issue resulting in two decrees, but only one appeal was filed in the Supreme Court. It is in this context that the plea of res judicata was raised. The Supreme Court dismissed the appeal that was filed on the ground of res judicata. The observations made in paragraphs 16 and 20 of the judgment are reproduced below:- "16. So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in section 11, has been heard and finally decided. That was certainly purported to be done by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and 7/78 are concerned, they were also suits simpliciter for the recovery of rents in which the defence pertaining to ownership was also not relevant; no substantial reason for the Tenant to file an appeal in O.S. 6/78 had arisen because the monetary part of the decree was relatively insignificant. Obviously, the Tenant's resolve was to make the ownership the central dispute in the litigation and in these circumstances cannot be allowed to equivocate on the aspect of ownership. Logically, if the question of ownership was relevant and worthy of consideration in O.S. 6/78, it was also relevant in O.S. 5/78. 31. Viewed in this manner, we think it is an inescapable conclusion that an appeal ought to have been filed by the Tenant even in respect of O.S. 5/78, for fear of inviting the rigours of res judicata as also for correcting the "dismissal" order. In our opinion, the Tenant had been completely non-suited once it was held that no cause of action had arisen in its favour and the suit was 'dismissed'. Ignoring that finding and allowing it to become final makes that conclusion impervious to change. In Sheoparsen Singh vs. Ramnandan Prasad Singh, (1915-16) 43 I.A.91, the Privy Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues were involved and since two appeals had been dismissed as being time barred and non-filing of the paper books, the other two appeals were dismissed as being barred by res judicata. In Venkateswar Prabhu, two appeals were decided by the High Court but only one appeal was filed in the Supreme Court. The Supreme Court dismissed the appeal that was filed on the ground of res judicata. Likewise, in Sri Gangai Vinayagar Temple an appeal was filed against the decree passed in original suit No. 6/78 but no appeal was filed against the decree passed in original suit No. 5/78. In such circumstances, the Supreme Court held that res judicata would apply to the appeal that was filed. 24. In the present case, the Commissioner (Appeals) decided three appeals by a common order in favour of the assessee. The Revenue initially assailed all the three orders but by filing one appeal before the Tribunal. Subsequently, in view of the application filed by the Revenue, two appeals were dismissed as withdrawn. The present appeal before the Tribunal is confined to only one order passed by the Commissioner (Appeals). 25. The principles of res-judicata would have to be examined in this context. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company as also its Directors. The Revenue filed only one appeal against the order passed by the Tribunal imposing penalty upon the Company but did not file any appeal against the order imposing penalty upon the Directors of the Company. The reason given was that the monetary limit in the case of Directors was lower than what was mentioned in the Circular. The High Court noticed that the imposition of the penalty was made on the Company and its Directors on a common ground and, therefore, when the Tribunal had allowed the Appeal filed by the Company well as by the Directors, the finding rendered by the Tribunal will attain finality if no appeal was filed against the Directors and only one appeal was filed against the imposition of the penalty on the Company. In such a situation the High Court held this would be within the realm of res judicata. The observations of the High Court are: 1. This appeal is by the Revenue against a common order passed by Customs, Excise and Service Tax Appellate Tribunal (for short, 'CESTAT') on appeal filed against the penalty order against a Company and its Directors. 2. Having heard Learned Counsel for the Revenue and Learned Counsel for the res ..... 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