2005 (10) TMI 335

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....Senior Manager of the Company under the provisions of Rule 209A read with provisions of Rule 173Q. 2.  After hearing both sides, duly represented by Shri Uday Joshi, Ld. Advocate, appearing for the appellants and Shri S.S. Bhagat, Ld. SDR, appearing for the revenue, we find that the matter had earlier came up before the Tribunal when the same was remanded vide order No. A-12/KOL/2003, dated 16-1-2003 by taking note of the disputed issue relating to the reversal of Modvat credit of duty in respect of inputs lying in stock when the final product manufactured by the appellants became exempted and by taking note of the Larger Bench's decision of the Tribunal in the case of Commissioner of Central Excise, Rajkot v. Ashok Iron & Steel Fab....

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....of the moot point of the issue, viz., that the position as available in the Ashok Iron & Steel case that there was no provisions under the Rules for reversal of credit, was no longer relevant to this case. The law laid down in these cases is no longer res judicata in view of the contrary view taken by the Tribunal in their other decisions as mentioned above which are as per provisions of enacted rules and codified law. As already discussed by me above, this case relate to the period June, 1998 when there was an express provision under the Modvat rules for reversal of credit when final products were exempt. It, therefore, appears to me that the Hon'ble Tribunal in the first instance ought to have given a specific ruling on the party's appeal....

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....l lost sight of the moot point and has acted mechanically in remanding the matter. He has also expressed his views as to how the ratio of five Members Bench's decision of the Tribunal is to be preferred when the Assistant Commissioner had referred to other decisions rendered by the Tribunal. Doubts expressed as to why a unit situated at Ahmedabad, approached the Tribunal at Kolkatta repeatedly amount to an innuendo totally uncalled for. 4. We find that Shri B.R. Tripathi, Ld. Commissioner adjudicating the matter, appears to be under a belief that he is sitting in appeal over the judgment of the Tribunal and, as such, has powers and jurisdiction to comment upon the same. Shri Tripathi seems to have forgotten that as a lower adjudicat....