9911796707
TMI Blog2004 (3) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... two separate premises, one unit in Village : Dahali, Tal : Mouda, District : Nagpur and another unit located at Rahadi Village, Tal : Mouda, District : Nagpur. In the unit at Village : Dahali, the appellants undertake the manufacture of Polyester Chips and Partially Oriented Yarn (POY). This unit is registered with the Central Excise Authorities vide Registration No. 01/Ch. 39 and 54/RM/92, dated 26-6-1992. At Village : Rahadi, the appellants have a Texturising Division where they undertake the manufacture of Synthetic Filament Yarn, which is textured, twisted or drawn, which products fall for classification under Central Excise Tariff Headings - 5402.32, 5402.43 and 5505.10. This Texturising Division has been registered as a Manufacturing Unit under Rules 174 and 102 of the Central Excise Rules, 1944 (the Rules in short) as a Manufacturing Unit vide Registration No. 02/Ch. 54/RM/TexDn/2000, dated 21-3-2000. 2. Prior to 1996 Before 1996, the present Texturising Unit was a unit of a district and separate entity viz. M/s. Deccan Polypack Ltd., which was registered independently with Excise Authorities vide Registration No. 9/Ch. 54/RN/94, dated March, 1994. The Registration was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activity for which a Certificate has been issued or surrenders the Certificate whichever is earlier." 8. 14-7-1998 Consequently, the Asstt. Commissioner, Dvn. Bhandara passed an order-in-original dated 14-7-1998 holding that as the Appellants had applied for registration and accordingly, it had been issued by the Superintendent on 1-1-1998, there remains no ground for any further action. 9. 18-11-1998 Against the above referred order-in-original dated 14-7-1998, the Appellant filed an appeal before the Commissioner of Central Excise (Appeals), who vide Order-in-Appeal dated 18-11-1998 held that the Appellants require only a single registration for both the units. 10. 27-11-1998 Consequent to the above order-in-appeal, the Appellants vide their letter dated 27-11-1998 applied for single registration and the same was granted by the Range Superintendent on 24-12-1998. 11. 7-2-2000 A Central Excise audit was conducted by the audit party between 17-2-2000 to 24-2-2000 headed by Joint Commissioner (Audit), Central Excise Headquarters, Nagpur. 12. 24-2-2000 In the course of audit, vide letter dated 24-2-2000, the Joint Commissioner instructed the Appellants to provide ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2000, dated 1-3-2000 should not be denied and duty at the effective rate i.e. 16% BED, 16% SPL and 15% additional on BED plus SPL should not be charged. 19. 2-4-2001 The Show Cause Notice No. C. No. V (54)3-31/2000/D/1063, dated 2-4-2001 calling upon the Appellants to show cause as to why the benefit of Notification No. 6/2000-C.E., dated 1-3-2000 should not be denied to the Polyester Textured Yarn manufactured by the Appellants. The Appellants were also asked to show cause as to why additional duty of Rs. 15,27,31,631/- should not be recovered for the period 22-3-2000 to 28-3-2001 under Section 11A of the Central Excise Act, 1944 (the Act). The Appellants were also asked to show cause against imposition of penalty under Rule 173Q of the Rules and payment of interest under Section 11AA of the Act. 20. The Appellants filed their composite reply in response to the said three show cause notices. 21. A personal hearing was held in the matter. 22. 13-7-2001 The Appellants filed their composite written submission. 23. 17-8-2001 The Respondent passed following three order-in-original. By the impugned order the Respondent has, inter alia, held as under : &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to units situated at Dahali and Rahadi; disallowing the benefit of Notification No. 6/2000-C.E., dated 1-3-2000 appears to be legal, proper and correct. The learned Commissioner had held that the confirmation of demand of Rs. 15,27,31,631/- was made without taking into account the abatement of duty from the cum-duty price actually received as per the decision of the Hon'ble Supreme Court in the case of Govt. of India v. MRF as also in the case of Shreechakra Tyres Ltd. and further denying the benefit of Modvat credit to the tune of Rs. 11,07,62,050/- needed to be reconsidered to that extent. Accordingly, the learned Commissioner was of the prima facie view that details in this regard that the differential amount payable ac- cording to the Appellants would at the highest be Rs. 8,83,871/-. However, by the said order, the learned Commissioner ordered a predeposit of Rs. 7,50,00,000/- along with interest. 26. 11-2-2002 Aggrieved by the said order, the Appellants filed a Writ Petition No. 522 of 2002 before the Hon'ble Bombay High Court, Nagpur Bench, challenging the said order, inter alia, on the ground that the Appellants had made out a prima facie c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one, would not act as an estoppel against their fresh contention. For the above proposition, he has referred to the various decisions which we shall be discussing in the subsequent paragraphs. 5. Sri R.K. Pardeshi, learned JDR for the Revenue, contended that it was the appellants' own case before the Commissioner (Appeals) that the two units were, in fact, one and the same, and required one licence only. The said contention of the appellants was accepted by the Commissioner (Appeals). The Order of the appellate authority was neither challenged by the appellants as it was in their favour, nor by the Revenue. As such, the same had attained finality. It was not open to the appellants now to claim otherwise in the subsequent proceedings. He further submits that the case law relied upon by the learned Sr. Advocate is in respect of the Income-tax Laws, where the assessments are made on yearly basis, and the ratio of the same is not applicable to the facts and circumstances of the instant cases. Reference was also made to various other decisions. 6. We have considered the submissions made by both sides. The dispute in the present appeals relates to the availability of Notification Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-4-96 was in order. The appellants also referred to the clarification issued by C.B.E.C. vide their Circular No. 10/2/69-CX-6, dated 12-5-71, according to which different sections or departments of the same factory, if located in adjoining premises or in premises merely separated by a road or railway line or canal, both the places are known as forming part of the factory. While disposing of the appeal filed by the appellants, the Commissioner (Appeals) in his Order referred supra, held as under :- "6. Having considered the facts on record and the submission of the appellants, it is found that the SCN as also the impugned Order passed by the adjudicating authority have no legs to stand upon. In view of the definition of 'factory' given under Section 2(e) of the Central Excise Act and clarification given by the Board vide its Circular under No. 10/2/69-CX-6, dated 12-5-71, the stand taken by the adjudicating authority that the erstwhile Deccan Polypack Ltd., which upon amalgamation became a division of M/s. DCL Polyesters Ltd. and which has been held as such i.e. a division of DCL Polyesters by the Supdt. and the adjudicating officer as would be clear from the SCN and the order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of officials. As has correctly been pointed out by the appellants, there are any number of factories manufacturing different items under a single registration. If at all it is held that the two divisions should have separate registration for the above reasons, it is the Range Officer who earlier allowed the appellants to work under a common registration should have been responsible and reprimanded for having violated the provisions of Rules, if any, and not the appellants because the appellants did not issue the registration themselves without the knowledge of the Central Excise Officials who, moreover, operate from the premises of the appellants. 10. The adjudicating authority erred in holding that as the appellant applied for separate registration which was accordingly granted by the Supdt. I/C Range, there remained no further action for him to take. The record shows that the application for separate registration in respect of PFY was not a voluntary one but was a result of pressure exerted by the Range Supdt., Mouda, as evident from his letter dated 27-10-97 directing the appellant to apply for separate registration and refused to authenticate and certify their statutory rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and the appellants were at liberty to take a diametrically opposite stand in the subsequent proceedings, and the authorities below instead of relying upon the earlier order of the Commissioner (Appeals) should have decided the issue afresh. However, we do not find any merits in the above contention of the learned Sr. Counsel. It was the appellants' own case before the Commissioner (Appeals) that the two units are one and the same and a single registration would suffice. The order of the Commissioner (Appeals) was not appealed against and has attained finality. The same was binding upon the Revenue as also upon the appellants. The said order having reached a stage of finality, cannot be circumvented by the appellants in the subsequent set of proceedings involving the same dispute without any change in the facts and circumstances of the cases. The Hon'ble Supreme Court in the case of Gulabchand Chhotalal Parikh v. State of Gujarat reported in AIR 1965 SC 1153, as noted by the Tribunal in the case of N.V.K. Mohamed Sultan Rowther & Sons v. Collector of Central Excise as reported in 1991 (55) E.L.T. 401 (Tribunal), has held that the provisions of Section 11 of C.P.C. relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r decision of the Appellate Tribunal as regards gifts made to brother and nephew not being genuine, can be subsequently reversed, while dealing with assessments of the subsequent years, and on a consideration of considerable additional evidence. However, we find that the ratio of the above decision is not applicable inasmuch as firstly it was the appellants' own stand before the Commissioner (Appeals) which was accepted by him, and secondly, there was no change in the facts of the case and the location of the two units remained the same. In the above referred case, the Hon'ble Supreme Court has observed that in the second set of proceedings, there was considerable additional evidence which was taken into consideration by the Tribunal for arriving at a decision that the gifts were geunine. There is no extra material in the present case so as to upset the earlier order of the Commissioner (Appeals) and to come to a different conclusion. 13. Our attention has also been drawn to the Madras High Court's decision in the case of Commissioner of Income Tax, Madras v. Central Studios (P) Ltd. reported in 1973 (88) ITR 298. It was held in the said decision that each assessment year is a uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the representation made by him or the stand taken by him in an earlier assessment would not necessarily bind him in a subsequent assessment. The assessment is complete in itself and neither the assessee nor the Revenue should be directly bound by the stand taken by them in the earlier assessment. As already observed, there is no system of yearly assessment in the Central Excise Law as is the system in the Income Tax Law. The fact that whether in the present cases, the two units were one or two separate units, is not required to be considered afresh with the start of every financial year. It is a question of fact and law, which already stands decided by the Commissioner (Appeals). As per the stand taken by the assessee at the relevant time, the said conclusion arrived at by the Commissioner (Appeals) cannot be upsetted subsequently, in our views, inasmuch as it is not a question required to be decided in each financial year as is the case in the Income Tax Laws. It is for this reason, we are of the view that the various decisions relied upon by the learned Advocate are not applicable inasmuch as the same have been rendered in the context of Income Tax Laws. 14. We note that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat document? In our opinion it would not be open to the second Tribunal to disturb the decision given by the first Tribunal because we must bear in mind that the construction of the partnership deed is not a matter of computation or a matter of reckoning which may alter from year to year or from assessment to assessment. The partnership deed is the very basis of the decision as to whether Hiralal is a partner in his own right or is a trustee for Vasantlal, then it is a decision with regard to the construction of the partnership deed and is a decision which is bound to affect not only that particular assessment but subsequent assessments, and therefore it seems to us that the mere fact that the second Tribunal may look upon the decision of the first Tribunal as erroneous in law would not justify it in coming to a contrary conclusion or reversing the finding of the first Tribunal. Nor are we satisfied that in order to enable the second Tribunal to depart from the finding of the first Tribunal it is essential that there must be some fresh facts which must be placed before the second Tribunal which were not placed before the first Tribunal. If the first Tribunal failed to take into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples which apply to all Tribunals to try and give as far as possible to finality and a conclusiveness to the decision arrived at........" As observed by the Hon'ble Bombay High Court in the above case, the Tribunal should be slow to depart from an earlier finding of the authorities and the judicial discipline requires the earlier orders which have attained finality to be followed too, unless it can be said that the same are arbitrary or perverse or there are some additional circumstances which were not considered by the earlier decision giving authority. This is not the case in the present matter. It is not the appellants' case that the location of the two units have been changed, or the earlier order of the Commissioner (Appeals) was not on appreciation and full consideration, of the facts. In fact, it was the appellants themselves who pleaded in favour of the two units being one and changed their stand subsequently only with the introduction of the Notification in 2000. As such, we are of the view that the principle of res judicata will apply and the appellants now cannot take a different view than the one taken by themselves before the Commissioner (Appeals). 15. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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