TaxTMI 
TaxTMI 
TaxTMI 
2011 (1) TMI 725
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....d in the appellant-company "Banswara Syntex Ltd." as amalgamated under the provisions of the Companies Act, 1956 w.e.f. order dated 28-9-2006 passed by the Company Judge of this court. 3. The controversy arose with reference to the legality of levy of Central Excise Duty on the "Galleries" attached with the "Hot Air Stenter" under the rules known as Hot Air Independent Textile Processors Annual Capacity Determination Rules, 1998 (hereinafter referred to as the Rules of 1998 for short). The appellant first faced the order dated 5-10-1999 passed by the Commissioner, Central Excise, Jaipur-II whereby after taking into consideration the galleries while computing the annual capacity of production in terms of value, it has been held by the assessing authority that assessee is required to pay duty @ Rs. 1.50 lac per chamber per month resulting into total duty per month Rs. 22,20,000/- w.e.f. 8-9-1999. The petitioner against this liability paid Rs. 21,91,500/- during the period 1-11-1999 to 29-2-2000 and there was short payment of only Rs. 1,14,000/-. The petitioner challenged the said order dated 5-10-1999 by preferring SBWP No. 3080/1999 before this Court. 4. It appears that ....
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....he revenue challenged the order dated 30-7-2003 in appeal before the appellate authority. On receipt of the notice from the appellate Tribunal, the appellant submitted cross-objection and prayed for confirmation of the order dated 30-7-2003 on the ground that in view of the subsequent decisions in another case, different view was taken by the Larger Bench of Tribunal than the view taken in appellant's case as back as on 5-10-1999 holding that inclusion of galleries in calculating excise duty is wrong and illegal, therefore, the order dated 30-7-2003 be confirmed by which the demand raised by the demand notice dated 3-11-2000 was dropped by the respondent no. 3-adjudicating authority. The appeal of the department was allowed by the appellate authority vide order dated 7-10-2004/30-9-2004 and it has been held that the appellant's challenge to the order dated 5-10-1999 failed with the withdrawal of his writ petition from the High Court on 3rd July, 2002 and thereby the order dated 5-10-1999 attained the finality. Therefore, the liability determined finally could not have fulfilled and recovery could not be dropped while execution jurisdiction under Section 11A of the Act of 1944. The ....
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....'s goods. According to the appellant himself the order dated 5-10-1999 was passed on the basis of the declaration dated 16-12-1998 submitted by the appellant before the assessing authority and said order was challenged by filing DBCWP No. 3080/1999 before this Court. This petition was withdrawn on 3rd July, 2002 only to challenge the order dated 5-10-1999 before the CEGAT. Admittedly, the order dated 5-10-1999 has not been challenged either before the CEGAT or before any competent authority till today and, therefore, the final order creating liability of the appellant is the order dated 5-10-1999. Further, it is not the case of the appellant that the order dated 5-10-1999 was provisional or interim order. 13. To examine the contention of the appellant that said order dated 5-10-1999 merged in the order passed by the respondent no. 3 dated 30-7-2003, we may look into the demand-cum-show cause notice dated 3-11-2000 (Ex.P/3). This notice is only a demand notice for recovery of the amount mentioned as well as notice to show cause why said amount cannot be recovered during pendency of writ petition filed by the appellant to challenge the order dated 5-10-1999 which is apparent fr....
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....detail by the Hon'ble Supreme Court in the case of Kunhayammed & Ors v. State of Kerala & Anr. reported in (2000) 6 SCC 359 = 2001 (129) E.L.T. 11 (S.C.) and the Hon'ble Supreme Court sum-up the conclusion in para no. 44 of the judgment and for our purpose, sub-paras nos. (i) and (iii) are relevant and the same are as under : - "44. To sum up, our conclusions are : "(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issuance before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) ****  ****  ****   ****  **** (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applica....
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....ority sought recovery of the amount not paid by the appellant in pursuance of order dated 5-10-1999 and not demanded more than that. In this proceeding, the appellant could have at the most submitted that he has paid the entire duty and could have raised the objection about the quantification of the amount of liability of the appellant, but strictly under order 5-10-1999. 17. It is settled law that in execution proceedings, the executing court/authority cannot go behind the order and has no jurisdiction to reopen the issues already decided in final order and pass any order, which may result into nullifying the main order or adversely affecting the order sought to be executed, therefore, the authority in the facts of this case, had no jurisdiction to declare that the appellant was not liable to the excise duty as levied by order dated 5-10-1999. 18. It is settled law that a decision given between the parties and which attained finality, remains final even if in another case, different view is taken by the court on question of law and, therefore, the respondent no. 3-the Dy. Commissioner, Central Excise Division, Chittorgarh had no jurisdiction to reopen the issue decided....