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TMI Blog2024 (3) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... order was also incorrect in law. The concurrence accorded to that impropriety by the first appellate authority piles gross impropriety on impropriety. We find no cause to allow this travesty of justice and judicial decorum to continue. The impugned order set aside - appeal allowed. - MR. C J MATHEW, MEMBER (TECHNICAL) AND MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri J C Patel, Advocate for the appellant Shri Amrendra Kumar Jha, Deputy Commissioner (AR) for the respondent ORDER Once upon a time, but not so long ago as to be blurred in our memories, assessment to duties of central excise was based on normal price and its variants that were identifiably distinguished for that purpose. Once upon a time, but not so long ago as to be erased from our minds, a rigid procedure mandated prior declaration of such price under section 173C of Central Excise Rules, 1944. And in those time, specifically in 1990, there arose a dispute that was permitted to fester till now a dispute peculiar to those times and peculiar for throwing all canons of judicial determination to the winds. 2. M/s P B Laboratories Ltd, the appellant and also an entity in the group comprising M/s Pharma Chem Distributors and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication, appeal and remand went through yet another cycle in orders of 28th March 1996 that was restored to the original authority on 19th November 1996. Once again, the demands confirmed in order of 30th April 1996 was set aside and issues remanded by order of 24th February 1997. A further cycle culminated in order of Commissioner of Central Excise (Appeals) on 1st October 1999 remanding the matter to original authority which was challenged before the Tribunal which was disposed off in order of 21st November 2005 by dismissing the departmental appeal against the remand. The notices, by now increased to twenty four, were all taken up together and order dated 26th October 2006, duty of ₹ 78,12,954.58 was ordered for recovery under section 11A of Central Excise Act, 1944 along with penalty under Central Excise Rule, 1944 again drawing upon the decision in re P B Pharmaceuticals Pvt Ltd which was upheld in order [order-in-appeal no. BR(10)MV/2013 dated 21st February 2013] of Commissioner of Central Excise (Appeals), Mumbai Zone I that is impugned here. 4. Learned Counsel for appellant submits that the issue of relationship having influenced price to warrant adoption of alternat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts alone. This is settled law as set out in re Eupharma Laboratories and in re Ish Rolling Mills this 4. We do not find merit in the appeal of the appellant-Collector. Firstly, this point had already been decided by the lower appellate authority as early as October 1978 and the scope of remand by the said authority to the original adjudicating authority was limited in its scope i.e. of verifying the facts on two aspects as mentioned above. The readjudicating authority could not go beyond the terms of the directions of remand of the superior appellate authority. Secondly, even on merits the word directly used in the notification would also cover the retail chemist shops approved by the ESIS authorities. Supply of P or P medicines to such approved shops is to be considered as good as supply to the Government department because such shops are the outlets of medicines for such Government department. Accordingly, the appeal is dismissed. and 4. We have considered the submissions of both the sides. It is not disputed by the Revenue that the Order-in-Original was passed by the Deputy Commissioner on remand by the Appellate Tribunal in Aggarwal Rolling Mills case (supra). The Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maceuticals P Ltd should have sufficed for the original and first appellate authority in the latest round. This is evident from 16. From the facts noted hereinabove, it is apparent that there was a dispute as regards the valuation of the goods manufactured by the petitioner-company and sold to a partnership firm of Mumbai, Messrs Pharma Chem Distributors. The first ground raised by the department was that the distributor of the petitioner is a related person, therefore there had been short levy of duty; and the second ground was that after insertion of para 7 in Notification No. 175/86-C.E., the petitioner-company was not entitled to exemption as a small scale industry as the petitioner and M/s. P B Laboratories Ltd., had been using the logo of P/B . - By the order-in-original dated 26-9-1991 the total demand of Rs. 79,47,034/- came to be confirmed against the petitioner-company in respect of the above referred two issues. The demand also came to be confirmed for the extended period of limitation, that is, for the period from 1-5-1985 to 31-12-1989. The matter was carried before the Customs, Excise and Gold (Control) Appellate Tribunal, who decided the issues against the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the present case, as noticed hereinabove, against the order of the Tribunal, the petitioners had preferred a statutory appeal before the Supreme Court under Section 35L of the Act. The Supreme Court in exercise of appellate jurisdiction, wherein the order of the Tribunal was subjected to judicial scrutiny, has set aside the entire order of the Tribunal. In the circumstances, the doctrine of merger would be squarely attracted in the facts of the present case and as such it is not permissible for the department to now raise the contention that part of the order of the Tribunal still survives and can be relied upon by the department. 17. A perusal of the impugned order passed by the Commissioner (Appeals) clearly shows that even though the aforesaid decision of the Supreme Court has been pointed out to the Commissioner (Appeals), he has construed the said decision as a decision holding that the petitioner-company is eligible for SSI benefit despite the fact that they had used logo P/B . He has further observed that the Supreme Court in the said decision has not made any observation as regards the petitioner-company and Messrs Pharma Chem Distributors, Mumbai being related person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that there was no justification for not restoring the original seniority to the appellant before it and assigning seniority from a subsequent date. The court held that once the expulsion order was set aside it had no existence in the eye of law and could not be taken notice of for depriving the appellant of his original seniority. 19. Examining the facts of the present case in the light of the aforesaid decisions, once the order passed by the Tribunal was set aside by the Supreme Court, it had no existence in the eye of law and could not be taken notice of by the respondents for the purpose of holding that Messrs Pharma Chem Distributors was a related person. In the light of the decision of the Supreme Court, all the issues which were subject matter of appeal before the Tribunal, had attained finality and as such it is not permissible for the department to thereafter reopen any of such issues against the petitioners herein, the same having attained finality by the decision of the Supreme Court. In the circumstances, the impugned order of the Commissioner (Appeals), which places reliance upon the order of the Tribunal for the purpose of holding that Messrs Pharma Chem Distribut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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