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TMI Blog2022 (2) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to by the Department as an appeal had been filed in the Supreme Court. The assessee filed a writ petition in the Bombay High Court to challenge the said order of the Assistant Collector. The High Court not only quashed the order passed by the Assistant Collector but also directed the Department to allocate the matter to a competent officer for passing a proper order - The Supreme Court also observed that the order of the Tribunal is binding upon the Assistant Collectors who functions under the jurisdiction of the Tribunal and that the principles of judicial discipline require that the orders of higher appellate authorities are unreservedly followed by the subordinate authorities. The aforesaid decisions of the Supreme Court have been referred to by the Supreme Court in COMMISSIONER OF INCOME-TAX VERSUS RALSONS INDUSTRIES LIMITED [ 2007 (1) TMI 184 - SUPREME COURT] and it has been observed that when an order is passed by a higher authority, the lower authority is bound keeping in view the principles of judicial discipline. The appeal before the Commissioner (Appeals), therefore, should have been allowed solely on the ground that on the same issue the Tribunal had earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge due to a process of manufacture and, therefore, excise duty could not have been levied. 6. In the present case, the Commissioner (Appeals) accepted that the issue involved in the appeal filed before him was identical to the issue that was earlier decided by the Tribunal, but refused to accept it as a precedent for the reason that the order of the Tribunal had been accepted by the Department on monetary grounds. The Commissioner (Appeals) perhaps intended to convey that the Department had accepted the decision of the Tribunal only on the ground of monetary limits and not otherwise. The appeal filed by the appellant was, therefore, rejected by the Commissioner (Appeals) and the relevant part of the order is as follows: 7.6 It is seen that earlier on the same issue, in the appellant s own cases the then Commissioner (Appeals) vide OIAs No. 70-71 and 72-73(AB)CE/JPR/2017 dated 28.03.2017 rejected the appeals filed by the appellant on the ground that the appellant was required to pay Central Excise duty on the said waste and scrap products cleared by them. Being aggrieved the appellant preferred appeals before the Hon ble CESTAT who vide Final Orders No. A/51001-51004/2018-EX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um Ventures vs. CCE, Ghaziabad -2014 (303) ELT 226 (Tri. Del.). The Tribunal examining the provisions of Section 2(d) including the Explanation thereto observed as under: 9. The lower authorities have strongly relied upon the amendment made in Section 2(d) of the Central Excise Act on 10-5- 2008 vide which the explanation was introduced vide Section 78 of the Finance Act, 2008. The said explanation was to the effect that any material which is capable of being bought and sold for consideration shall be deemed to be marketable. However, first of all, it has to be seen whether the said goods can be held to be result of any manufacturing activity. The expression manufacture stands defined under Section 2(f) of Central Excise Act, 1944 and is to the effect that the same would include any process incidentally or ancillary to the completion of a manufactured product or which is specified in relation to any goods in Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 as amounting to manufacture or which involves packing or re-packing or labelling or re-labelling of container or declaration or alteration of retail sale price or adoption of any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. Hence, they do not qualify to be taxed for excise levy. 7. In view of the above discussions and analysis, the impugned orders are set aside. The appeals are allowed. ( emphasis supplied ) 11. Learned authorised representative appearing for the Department does not dispute that the issue involved in this appeal and the earlier appeals decided by the Tribunal is identical. 12. The Commissioner (Appeals), it needs to be noticed, even after noticing that the same issue was involved did not accept the decision of the Tribunal as a precedent solely for the reason that the order passed by the Tribunal had been accepted by the Department on monetary grounds. 13. So long as the order of the Tribunal had not been set aside by the High Court or the Supreme Court, it had precedential value so far as the Commissioner (Appeals) was concerned and the observations made by the Commissioner (Appeals) that the earlier decision of the Tribunal would not have precedential value for the reason that the Department had accepted the order of the Tribunal on monetary grounds speaks volumes about non-observance of judicial propriety. The Commissioner (Appeals) was bound to follow the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id earlier, such view is destructive of one of the basic principles of the administration of justice . In fairness to him it must be stated that learned counsel for the respondent did not attempt to support the judgment of the Judicial Commissioner on the ground that no manifest injustice resulted from the refusal of the respondent to carry out the directions of a superior tribunal. He conceded that even if the order of the Tribunal was wrong, a subordinate and inferior tribunal could not disregard it; he readily recognised the sanctity and importance of the basic principle that a subordinate tribunal must carry out the directions of a superior tribunal. (emphasis supplied) 15. This principle was also laid down by Supreme Court in Dharma Chand Jain Vs. The State of Bihar [ AIR 1976 SC 1433 ] and the observations are: The State Government being a subordinate authority in the matter of grant of a mining lease, was obliged under the law to carry out the orders of the Central Government as indicated above. But the State Government declined to do so on the ground that it had laid down a policy that the mining leases in respect of the area should be given only to those who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal is one, when alone or in company. I have dissented from a decision of the majority of this House. But the judicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted. (emphasis supplied) 17. In this connection it will also be appropriate to refer to the decision of the Supreme Court in Union of India vs. Kamlakshi Finance Corporation Ltd [ AIR 1992 SC 711 ]. The order passed by the Assistant Collector not only ignored the order of the Collector (Appeals) remanding the matter, but also distinguished the decision of the Tribunal by observing that the decision of the Tribunal had not been agreed to by the Department as an appeal had been filed in the Supreme Court. The assessee filed a writ petition in the Bombay High Court to challenge the said order of the Assistant Collector. The High Court not only quashed the order passed by the Assistant Collector but also directed the Department to allocate the matter to a competent officer for passing a proper order. It is against this decision of the Bombay High Court that the Union of India preferred an appeal before the Supreme Court. The Supreme Court remark ..... X X X X Extracts X X X X X X X X Extracts X X X X
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