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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 ..... cals Pvt Ltd, were manufacturers of 'medicaments' that were marketed through M/s Pharma Chem Distributors who had also been incurring certain expenditure towards these products between 1990 and 1999. Price lists filed for approval between 9th July 1990 and 12th April 1991 set the ball rolling. There were, in fact, two streams of disputes: the first, by notice dated 26th July 1991, questioned the non-inclusion of certain expenditures borne by the sole din the assessable value following the judgement of the Hon'ble Supreme Court in Union of India v. Bombay Tyre International [1982 (4) ELT 1986 (SC)] while the other, by notice dated 4th November 1991, questioned the manner in which price was arrived at owing to alleged relationship with distributors to whom the goods were sold. Both came to be adjudicated by the jurisdictional Assistant Collector of Central Excise against the assessee in order dated 11th February 1992 but, when carried in appeal to, was set aside by Collector of Central Excise (Appeals) in order of 29th February 1992 by holding that the assessee were not distributed and, insofar as the other controversy was concerned, the original authority was directed to quantify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od settled in their favour as far back as 29th February 1992 upon finding of the first appellate authority disclaiming relationship with sole distributor and failure of Revenue to file appeal thereto. Reliance was placed on the decision of the Hon'ble Supreme Court in Commissioner of Customs v. Kushalchand & Co [2015 (325) ELT 813 (SC)]. It was submitted that the impugned order upholding of the correctness of the demand by original authority in blatant violation of judicial discipline patently violates all canons of judicial decorum. That the first appellate authority had traversed propriety in not enforcing its own earlier decision was sought to be buttressed by decision of the Tribunal in Collector of Central Excise v. Eupharma Laboratories [1989 (43) ELT 471 (Tribunal)] and in Commissioner of Central Excise, Panchkula v. Ish Rolling Mills [2004 (167) ELT 126 (Tri-Del)]. 5. It was further submitted that, as far back as 28th February 1996, the first appellate authority had discountenanced the reliance placed by the original authority on the decision of the Tribunal in re P&B Pharmaceuticals P Ltd for not being in congruity with the facts of the dispute before them despite which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, while remanding the matter, has considered the question of eligibility of the appellants to Notification No. 214/86 and clearly held that the duty liability, if any, would lie on the supplier of the raw material. It is not the case of the Revenue that this finding recorded by the Appellate Tribunal in the remand order, was challenged in any higher Appellate Forum. Once the finding of the Tribunal has not been challenged, it is binding on the authority while adjudicating the matter on remand. In de novo proceedings, the adjudicating authority cannot go beyond the remand order. The Commissioner (Appeals) has referred to the decision of the Calcutta High Court in the case of Scientific Instruments Co. Ltd., 1980 (6) ELT 89 (Cal.) wherein it has been held that when an order is remanded with specific directions, the powers and jurisdiction of lower authority is limited to the extent the cases is remanded back. The learned Commissioner (Appeals) has also relied upon the decision of the Tribunal in the case of C.C.E. v. Eupharma Laboratories, 1989 (43) ELT 471 (T) wherein the Tribunal has held that readjudicating authority cannot go beyond the terms of the directions of remand of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners. Being aggrieved, the petitioners preferred an appeal before the Supreme Court, which came to be allowed by the judgment and order dated 19-2-2003. Before the Supreme Court, it was the entire order of the Tribunal which was subject matter of challenge. The Supreme Court has passed a speaking order in relation to the question of availing exemption under Notification No. 175/86-C.E. and held that the petitioners were entitled to use the logo as well as to avail all benefits of exemption as an SSI unit. Insofar as the question as regards Messrs Pharma Chem Distributors being a related person is concerned, the Supreme Court has taken note of the fact that earlier show cause notices had been issued in relation to the said question wherein the department had taken a view in favour of the petitioners. However, subsequently, the case of the department is that Messrs Pharma Chem Distributors is a related person. The Court observed that so far as the assessee is concerned, it has all along been contending that they were not related persons, so, it cannot be said to be guilty of not filling up the declaration in the prescribed proforma indicating related persons. The Court held that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed persons. The Commissioner (Appeals) has, therefore, placed reliance upon the order passed by the Tribunal to the extent it upheld the ground as regards the petitioner-company and Messrs Pharma Chem Distributors being related persons, and accordingly, held that the petitioners were obliged to discharge duty liability in view of the fact that Messrs Pharma Chem Distributors, Mumbai were related to them. The Commissioner (Appeals) has also placed reliance upon the observations and directions given by the Tribunal that the assessable value should be determined on the basis of the sale price at the hands of Messrs Pharma Chem Distributors, Mumbai but in arriving at such assessable value, permissible deductions as per law, have to be made. Thus, it is apparent that for the purpose of deciding the issue as regards Messrs Pharma Chem Distributors being a related person, the Commissioner (Appeals) has placed reliance upon the order of the Tribunal as well as the observations made therein, despite the fact that the same stood merged in the order of the Supreme Court and had no independent existence on its own. This High Court in the case of Satellite Engineering Limited v. Assistant Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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