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TMI Blog2024 (5) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [ 1991 (9) TMI 72 - SUPREME COURT] , wherein the Hon ble Supreme Court was pleased to hold 'the mere fact that the order of the appellate authority is not acceptable to the department in itself an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws.' It is also found that the direction in the impugned order directing the adjudicating authority to decide the issue of entitlement to interest afresh, is also barred by principle of res judicata, as the said issue was conclusively decided in order dated 04.08.2021 and therefore the parties cannot be allowed to re-agitate the said issue again. Further, it is a settled law that once an order has not been challenged before the appropriate authority, it cannot be reopened and challenged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant took credit of the earlier reversed amount of Rs 18,86,116/-. In the meantime, demand cum show cause notice dated 14.07.2009 was issued alleging that the goods cleared by the Appellant to BHEL without payment of duty, are not eligible for exemption under Notification No. 6/2006-CE dated 01.03.2006 and therefore duty on such goods amounting to Rs 26,51,689/- is liable to be recovered along with interest and penalty. The said demand cum show cause notice was adjudicated vide Order-in-Original dated 30.11.2009 confirming demand of Rs 26,51,689/- along with interest and imposition of penalty. The appeal filed by the Appellant against the said adjudication order was allowed vide Order-in-Appeal dated 13.09.2010 and it was held that benefit of exemption Notification No. 6/2006-CE dated 01.03.2006, as amended, is available to the Appellant. The said Order-in-Appeal dated 13.09.2010, in absence of any challenge, attained finality between the parties. That Show Cause Notice [SCN] dated 21.09.2010 was then issued alleging that the suo-moto credit taken by the Appellant, is contrary to law and hence cenvat credit amounting to Rs 18,86,116/- along with interest and penalty are liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertinent to point out that even though the amount of duty deposited by the Appellant under the unamended Section 35F became refundable after the order dated 14.11.2017 of this Tribunal, yet the Adjudicating Authority vide Order-in-Original dated 02.02.2019 ordered for recovery of the same and the amount already deposited by the Appellant was not ordered to be appropriated against the confirmed demand. In Order-in-Original dated 15.03.2019 also, there was no occasion for the Adjudicating Authority to appropriate the excess amount of duty. 6. The Order's-in-Original dated 02.02.2019 and 15.03.2019 were challenged by the Appellant before Ld. Commissioner (Appeals) by disclosing the amount deposited on 25.07.2012 as the amount of pre-deposit under the amended Section 35F. Such deposit was not disputed by the Revenue and by Order's-in-Appeal dated 03.10.2019 the two Order's-in-Original were upheld on merits. The Order's-in-Appeal dated 03.10.2019 were then challenged by the Appellant before this Tribunal in separate appeals. In the memo of appeal relating to demand of duty, the Appellant again disclosed the amount of Rs 18,86,138/- as the amount of pre-deposit under am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the parties and therefore the Adjudicating Authority had no jurisdiction to refuse to follow the directions of this Tribunal. Reliance in this regard is placed on the judgment of the Hon ble Supreme Court in Bhopal Sugar Industries Ltd. V/s , (1961) 1 SCR 474, wherein a subordinate Officer had refused to carry out clear and unambiguous directions of the Income Tax Appellate Tribunal. The Hon'ble Supreme Court had held as follows: We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the subordinate authority is of the view that the directions issued by the Court is contrary to statutory provision or well established principles of law, it can approach the same Court with necessary application/petition for clarification or modification or approach the superior forum for appropriate reliefs. In the present case, as we have already noticed, the respondents have not questioned the order passed by the High Court, which order has reached finality. In such circumstances, we cannot permit the adjudicating authority to circumvent the order passed by the High Court. 11. Learned Departmental Representative appearing on behalf of the Revenue has reiterated the facts and findings of the impugned order and prayed that the appeal filed by the Appellant be dismissed being devoid of any merits. 12. Heard both the sides and perused the appeal records. 13. I have considered the impugned order along with the submissions made in appeal, during the course of arguments and in the written submissions filed by the Appellant. 14. The facts as stated above are not in dispute. Both the parties agreed that in earlier round of litigation, this Tribunal vide order dated 04.08.2021 decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 15 I also find that the direction in the impugned order directing the adjudicating authority to decide the issue of entitlement to interest afresh, is also barred by principle of res judicata, as the said issue was conclusively decided in order dated 04.08.2021 and therefore the parties cannot be allowed to re-agitate the said issue again. 16. 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. Reference in this regard may be made to Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group (2011) 3 SCC 363, CCE, Kanpur v. Flock (India) Pvt. Ltd. (2000) 120 ELT 285, ITC Ltd. v. CCE (2019) 368 ELT 216, Gillooram Gouri Shankar v. CCE, Jamshedpur (2001) 137 ELT 330 (Tri.-Kolkata), Herbicides India Ltd. v. CCE 2020 (7) TMI 290 CESTAT-New Delhi and CCE, Tuticorin v. Madura Coats Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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