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TMI Blog2023 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... RSUS KAMLAKSHI FINANCE CORPORATION LTD. [ 1991 (9) TMI 72 - SUPREME COURT ] held that It is clear that the observations of the High Court, seemingly vehement, and apparently unpalatable to the Revenue, are only intended to curb a tendency in revenue matters which, if allowed to become widespread, could result in considerable harassment to the assessee-public without any benefit to the Revenue. Further, it is a settled law that once an order has not been challenged before the appropriate authority, it cannot be reopened and challenged in collateral proceedings subsequently by the same authority - The finding recorded in the impugned order that the order dated 03.01.2019 was accepted by the revenue purely on monetary grounds, appears to be incorrect, as the quantum of interest i.e. Rs 69,44,200/- is higher than the prevailing monetary limit i.e. Rs 50,00,000/-. The applicability of sub-section (4) of Section 35R is restricted to the same authority i.e. the Commissioner (Appeals), Appellate Tribunal or the Court, whose order was not challenged by the revenue because of monetary limit and it is the same authority i.e. the Commissioner (Appeals), Appellate Tribunal or the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Madras High Court in the case of UCAL Fuel Systems Limited without looking at the decisions of the Supreme Court etc. on the issue appears to have been made as such binding decisions are not placed before the Hon ble bench. I also find that another bench of Hon ble Tribunal decided the issue of interest in their order reported in 2018-TIOL-3038 in the case of M/s Ratnamai Metals and Tubes Ltd. v. CCE Ahmedabad by following the decision of the Hon ble Supreme Court in M/s Ranbaxy Laboratories Ltd. v. UOI supra. It is also on record that the relied upon decision of the Tribunal in the earlier proceeding dated 03/04/2009 has not attained finality, and also that the order dated 03/01/2019 was accepted purely on monetary grounds, and therefore, I find that the Assistant Commissioner should look into the issue afresh and decide the eligibility of interest in terms of statutory provisions after obtaining a legal opinion on the issue as to whether; i. He should follow the order dated 03/01/2019 in the given facts and circumstances of the case by ignoring the settled position of law on the issue or not? ii. He should pass a Final Order only after the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been decided by this Tribunal vide Final Order dated 30.04.2009, the amount paid under protest which is held to be not the duty. In that circumstances, in the light of the decision of Hon ble Madras High Court in the case of Central Excise, Chennai-II vs. UCAL Fuel Systems Ltd. (supra) the assessee is entitled to claim the interest from the date deposit to its realization. Therefore, we hold that appellants are entitled to claim interest from the date of payment of deposit, as mentioned in para no. 2 hereinabove, till its realization. 8. In these terms, the appeal is allowed. 5. Pursuant to the aforesaid direction, the Assistant Commissioner passed Order in Original No. 426-R/AC/D-I/GBN/19-20 dated 22.11.2019 sanctioning the amount of interest of Rs 69,44,200/- to the appellant. The order dated 22.11.2019 was then reviewed and appeal against the same was filed by revenue before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) allowed the appeal of the revenue by way of remand in terms of the directions contained in the impugned order reproduced hereinabove. 6. Aggrieved by the impugned order, the appellant has filed the present appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order of the Commissioner (Appeals) taking a contra view on the issue of entitlement and period of interest, is therefore contrary to the principle of judicial discipline as enunciated by the Hon'ble Supreme Court in Union of India v. Kamlakshi Finance Corporation Ltd., (1991) 55 ELT 433, wherein the Hon ble Supreme Court was pleased to hold as under:- 6 . Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuant to order made by the Tribunal is not required to be entertained on merits considering the fact that the said order is not an independent order made for the first time. The said order had already been made on 5-6-2003. It was only because the intervening order dated 19-09-2003 of Commissioner (Appeals), that the Adjudicating Authority was required to pass consequential order once again on 4-1-2006 pursuant to order made by the Tribunal. In the circumstances, once the order of Tribunal had attained finality, the petitioner cannot claim any relief. 15. The finding recorded in the impugned order that the order dated 03.01.2019 was accepted by the revenue purely on monetary grounds, appears to be incorrect, as the quantum of interest i.e. Rs 69,44,200/- is higher than the prevailing monetary limit i.e. Rs 50,00,000/-. 16. As the impugned order heavily relies upon acceptance of order dated 03.01.2019 on monetary limits, hence we may also refer to Section 35R of the Central Excise Act, 1944, relevant part of which is reproduced hereunder:- 35R. Appeal not to be filed in certain cases. (1) The Central Board of Excise and Customs may, from time to time, issue ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y limit and it is the same authority i.e. the Commissioner (Appeals), Appellate Tribunal or the Court, which shall have regard to the circumstances in which such appeal, application, revision or reference was not filed. Any interpretation other than this would result in chaos in administration of justice, as a well-reasoned order of a higher court would not be followed by a lower court, merely because the decision was accepted on monetary grounds. Thus, sub-section (4) of Section 35R can be invoked only by the same authority/court or the superior authority/court and not by the inferior authority/court. 19. Therefore, when revenue is alleging non-filing of appeal against order dated 03.01.2019 passed by this Tribunal purely on monetary grounds, it is this Tribunal alone, which can consider the circumstances in which the appeal was not filed by the revenue and may take appropriate decision on the issue. However, sub-section (4) of Section 35R cannot be applied by the lower authority i.e. the Commissioner (Appeals) in the present case, to take a view from that taken by this Tribunal. 20. Thus, we are of the view that the impugned order violates principle of judicial discipline a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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