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TMI Blog2005 (7) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... d hereinbefore, the order of the Tribunal, has attained finality and in the circumstances, it is not possible for any subordinate authority to go behind the said order, more particularly, qua findings of fact recorded by the Tribunal. Therefore, the specious plea made by respondent No. 3, to the effect that the petitioner had not established that the engines had borne duty, is not only hollow but bereft of any substance and against the settled legal position. The fact that the impugned show cause notice has been issued at a subsequent stage and after issuance of communication dated 7-1-2004 (Annexure F ) would go to show that the said notice has not been issued with an honest intent. As this Court is not called upon to undertake an inquiry in this regard, suffice it to state that the notice does not appear to be bona fide. Vide Circular No. 695/11/2003-C.X., the Central Board of Excise Customs has laid down as to in what circumstances the goods must be released or refund must be granted and in this connection, it is stated that The order of High Court or Tribunal should be implemented unless a stay has been obtained from the higher judicial forum on the implementation of the order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly respondent No. 3, is entitled to go behind an order of the Tribunal and refuse to implement it by issuing the impugned show cause notice bearing F. No. V84 (18)-1236/2004-Ref., dated 3rd February, 2005 (Annexure H ). 2. The petitioner, a Private Limited Company, manufactures Diesel Engines which are admittedly classified under Heading 84.08 of the Central Excise Tariff Act. The Engines are cleared for home consumption on payment of excise duty. The Engines are also removed for captive consumption for manufacturing Centrifugal Pumps commonly described as couple sets. The Excise Department took a view that the Diesel Engine, when cleared for captive consumption, was not chargeable to duty in view of the Notification No. 4/97-C.E., and Notification No. 5/98-C.E. as well as similar Notifications issued from time to time in each financial year and therefore, since the final product, namely, the Diesel Engine was both exempt as well as chargeable to duty, the petitioner was required to pay 8% of the selling price under Rule 57CC of the Central Excise Rules, 1944. This finding was recorded in light of the fact that all Diesel Engines were manufactured out of common inputs. The matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Annexure H ). 5. Having heard the learned advocates appearing for the respective parties, it becomes apparent that the respondents, more particularly respondent No. 3, has issued impugned notice with a view to delay implementing the Tribunal's order, if not, ignore the same with an intention which is not far to seek. The learned advocate for the respondent has placed great emphasis on paragraph No. 3(c) of the Tribunal's order dated 23-7-2003 in support of the contention, that the authority is entitled to undertake an exercise of verification as to whether the engines have borne duty. In support of the stand adopted by the respondent, it is submitted that letter dated 7th December, 2004 (Annexure F ) addressed by the Department does not confer any right to the petitioner as the petitioner would be entitled to re-credit only on establishment of the factum of having paid duty in the first instance. 6. It is not disputed on behalf of the respondent authorities that the order of Tribunal dated 23rd July, 2003 has become final, there being no challenge to the said order. In the circumstances, the respondent authority could not have undertaken to ignore the said order by raisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Excise Customs has laid down as to in what circumstances the goods must be released or refund must be granted and in this connection, it is stated that The order of High Court or Tribunal should be implemented unless a stay has been obtained from the higher judicial forum on the implementation of the order. Further, consultation with Board in such cases may cause into delay in finalization of the refund claims . Accordingly, the Board has directed the jurisdictional commissioners to take decisions in such cases at their level to grant refund. 10. Therefore, applying the aforesaid circular also, if the action of the respondents is tested, it becomes clear that the respondent was not justified in issuing the impugned show cause notice. 11. With the affidavit in reply, the respondent has annexed order dated 4-3-2004 made by a Single Member Bench of the Tribunal in the case of M/s. Kapoor Machinery Stores v. The Commissioner of Central Excise, Rajkot, to emphasize the fact that, by a subsequent order, the Tribunal has taken a contrary decision in case of another assessee. The learned counsel for the petitioner has responded to this by placing on record subsequent order dated 29-4-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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