TaxTMI 
TaxTMI 
2009 (12) TMI 243
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.... 31-3-2009 (Annexure-J). 4. This Court has issued notice on 6-5-2009. Pursuant to the notice Mr. Y.N. Ravani, learned Standing Counsel appears on behalf of the Revenue. An affidavit-in-reply was filed on behalf of respondent No. 3 to which rejoinder affidavit was filed by the petitioner. Thereafter reply to the rejoinder is also filed. 5. The brief facts giving rise to the present petition are that the petitioner Company is engaged in manufacturing sophisticated machineries like Induction Melting/Heating Furnace and Welder, and also parts thereof. The Central Government has issued Notification No. 10/97-C.E. granting exemption to goods, namely, scientific and technical instruments, apparatus, equipments when supplied to public funded rese....
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....tay applications which were decided in favour of the petitioner. During the pendency of the Appeal before the CESTAT, two more show-cause notices were issued on 22-2-2008 and 25-7-2008 covering the period from August, 2007 to June, 2008. The Assistant Commissioner passed Order In Original in respect of these two show causes notices on 21-7-2008 and 31-10-2008 respectively and demanded duties and imposed penalties. 8. The CESTAT, Ahmedabad allowed the petitioner's Appeals on merits holding that the above goods supplied against the certificates as specified in the Notification were exempt and the Appeals came to be allowed with consequential benefit in the petitioner's favour. 9. So far as Appeals filed by the petitioner against the Order-i....
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.... passed by the Commissioner (Appeals) is not only wholly without jurisdiction but also unreasonable and arbitrary and hence, it offends the constitutional guarantees enshrined under Article-14 of the Constitution of India. He has, therefore, submitted that this ex-facie illegal order is non est and hence, the petitioner approached this Court for appropriate order, relief or direction in the peculiar facts of this case. 11. In support of his submissions, Mr. Dave relied on decision of this Court in the case of Milcent Appliances Pvt. Ltd., v. Union of India, reported in 2006 (205) E.L.T. 130 (Guj.) wherein it is held that the order of the Appellate Commissioner disregarding directions of the tribunal was liable to be set aside in a writ pet....
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....n case. While disposing of the Appeal which is decided by the Commissioner (Appeals), it is observed as under:- "I have also gone through the decision of Hon'ble CESTAT, WZB, Ahmedabad in the case of M/s. Inductotherm (India) Pvt. Ltd., v. CCE, Ahmedabad wherein the parties appeal allowed and demand is set aside. I find that in the said order a CESTAT is relied on the following judgments, (i) M/s. Andrew Yule & Col. Ltd., 2004 (172) E.L.T. 212 (Tri.-Chennai) (ii) M/s. Danke Products - 2005 (186) E.L.T. 215 (Tri.-Mumbai) (iii) Voltamp Transformers Pvt. Ltd. -2007 (218) E.L.T. 217 (Tri.-Ahmd.) (iv) M/s. Featherlite Products Pvt. Ltd. - 2007 (208) E.L.T. 143 (Tri.-Bang.). It appears that the Order No. A/438-439/WZD/Ahd/2009 was issued on 5-2-....
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.... above observations the Commissioner (Appeals) has clearly observed that though the decision of the CESTAT is in favour of the appellant there are option with the revenue either to review or to prefer an Appeal against the said order. It is only on this ground the Commissioner (Appeals) has not given the benefit of the said order to the petitioner. 14. From the tenor of the order passed by the Commissioner (Appeals) we are of the view that the course adopted by him is not justified. Judicial propriety demands that when there is an order of higher forum available in the assessee's own case, the same has to be followed by the lower authority unless certain distinguishing features are pointed out by such lower authority or the order of the hi....
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....e function of the High Court to hold and observe that the officers who are performing quasi-judicial functions will not behave in the manner in which the Assistant Collector on remand has behaved in the instant case. 16. When the above decision was challenged before the Apex Court, the Apex Court in Union of India v. Kamlakshi Finance Corporation Ltd. (supra) not only dismissed the department's Appeal but also observed that the principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. 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 a....