9911796707
TMI Blog2024 (9) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... which was in relation to the period July, 1999 to November, 2002. Admittedly, the subsequent show cause notice dated 05.09.2003 includes the period July, 1999 to May, 2002, for which the CESTAT has already passed an order in favour of the respondent, which has attained finality and, therefore, it is not open for the Revenue to again -agitate the said issue by way of issuing a fresh show cause notice. The action on the part of the Revenue of not challenging the decision of the CESTAT in relation to the period July, 1999 to May, 2002, which is included in the subsequent show cause notice dated 05.09.2003, disentitles it from challenging the same. The Hon ble Supreme Court has disallowed the Revenue to take different stand in the same situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis for determination of installed capacity during pre-expansion period as it was clearly stated in the notification no. 33/99-CE dated 08.07.1999 that cut off date was to be treated on or after 24.12.1997. 3. The brief facts of the case are that the Revenue had issued a show cause notice to the sole respondent on 05.09.2003 alleging that the respondent having the factory at A.T. Road, PO-RLL Jorhat, engaged in the manufacture of Aerated Water falling under Clause 22 of the Central Excise Tariff, 1985 and it had wrongly availed the benefit of the Notification No. 33/99-CE dated 08.07.1999 and got the refund of central excise duty paid from PLA by it for the period from July, 1999 to November, 2002, amounting to Rs. 15,04,35,465.00 by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent Central Excise Appeal is filed by the Revenue. 6. It is noticed that the CESTAT, in its impugned order has taken note of the fact that vide order dated 20.01.2005, the CESTAT had already affirmed the order passed by the Commissioner, Central Excise, Shillong in the case of the respondent Company for the period running from July, 1999 to May, 2002 and rejected the claim of the Revenue that the respondent Company has erroneously availed that refund under the Notification dated 08.07.1999, as amended. It is also to be noticed that against the order dated 20.01.2005 passed by the CESTAT in the case of the respondent Company, in relation to the period running from July, 1999 to May, 2002, no appeal or any other proceedings were initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious decision to accept the principles laid down in Pepsico India Holdings Ltd. (supra) cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary. 9. In Jayaswals Neco Limited -Vs- Commissioner of Central Excise, Nagpur, reported in 2006 (195) ELT 142 (SC), again the Hon ble Supreme Court has reiterated that the Revenue cannot be permitted to take a stand different than the principles laid down in the earlier case and has observed as under:- 6. This Court in Birla Corpn. Ltd. v. CCE relying upon an earlier decision of this Court, held that the Department having accepted the principles laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated on the said decision of a coordinate Bench of the same Tribunal and, without 9 examining the ratio therein, simply held the same to be inapplicable to the present case. 9. Assuming even if it were to disagree with the test laid down in Hindustan Gas and Industries easel in order to maintain the judicial propriety in decision-making, the Tribunal ought to have referred the matter to a larger Bench, which it did not do. If a Bench of coordinate jurisdiction does not agree with a Bench of the same strength, then it should refer the matter to a larger Bench and refrain from taking upon itself not to follow such decision and take a contra view. This inevitably leads to uncertainty and creates confusion. This practice must be deprecated at a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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