2010 (1) TMI 1152

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....ntity Value (in Rs.) Duty (in Rs.) 1. 3/94-95 27-10-1994 35.550 6,75,450/- 1,01,317.00 2. 6/94-95 21-11-94 36.425 6,92,075/- 1,03,811.25 3. 10/94-95 19-12-1994 27.195 5,16,705/- 77,505.75 4. 11/94-95 19-12-1994 26.865 5,10,435/- 76,565.25 5. 12/94-95 29-12-1994 26.810 5,09,390/- 76,408.60 6. 13/94-95 29-12-1994 25.765 4,89,535/- 73,430.25 7. 14/94-95 29-12-1994 28.460 5,40,740/- 81,111.00 8. 15/94-95 6-1-1995 24.835 4,71,865/- 70,779.00 9. 16/94-95 17-1-1995 24.325 4,62,175/- 69,326.25 10. 17/94-95 21-1-1995 28.855 5,48,245/- 82,237.00       Total 8,12,492.00 2.1 Five show cause notices were issued by the Assistant Commissioner, Central Excise, Division-Chandrapur under F.No. (i) V(72) 3-51/95/CND1661, dated 18-4-1995, (ii) V(72) 3-51A/95/CND2123, dated 16-5-1995, (iii) V(72) 3-66/95/CND2438, dated 16-6-1995, (iv) V(72) 3-69/95/CND 2530, dated 27-6-1995 and (v) V(72) 3-89/95/CND........., dated 3-7-1995 seeking to recover the Central Excise duty amounting to Rs.....

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....ls), Central Excise, Nagpur is not legal, proper and correct. 3. Aggrieved by this order-in-appeal, the Commissioner has filed this revision application on the following grounds : 3.1 Commissioner (Appeals) ignored the facts that clearances of goods for export were not established. No copies of Application ............. were filed with the Range Office in token of Export of the goods. As per procedure Triplicate copies of AR-4 has to be signed by jurisdictional Range Officer in token clearance of goods for Export which are required for accepting proof of export by bond authority. Even the inquiry with Assistant Commissioner (Bond) reveals that Triplicate copies of AR-4 were not signed by Range Officer. No Central Excise invoices were submitted to Assistant Commissioner (Bond) for verification of Export. The above grounds have not been taken into consideration by the Commissioner (Appeals). Further Commissioner (Appeals) while dismissing the appeal has taken the ground that the same case has already been decided by Joint Secretary vide Order No. 310/2006 but failed to see that the department has filed Rectification of Mistake against the said order being revision app....

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....premises of manufacturer. So the liability of producing proof of export is rest with manufacturer being he is the only person who approaches the Assistant Commissioner for clearance of goods for exports under the Bond executed by Merchant Exporter. 4. A notice under Section 35EE was sent to the respondent who filed their counter reply vide their letter dated 1-7-2009. Their main arguments are as under : 4.1 We submit that the present revision application is nothing but an attempt to seek readjudication of the issues already decided between the same parties. The events would reveal that the maintainability of the demand of duty against the present non-applicants had been decided by the Commissioner (Appeals) vide his order-in-appeal No. SVS/293/NGP-I/05, dated 25-8-2005 in favour of the non-applicants and which had been upheld by this Hon'ble Authority vide his order No. 310/2006, dated 28-4-2006. Once the same issue has been finally decided between the very same parties, the department is precluded from reopening the same. In this regard we place reliance on the judgments of the Hon'ble Supreme Court. Commissioner of Central Excise, New Delhi v. India Thermit Cor....

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....ities for the proposition that we cannot, in the circumstances of this case, do so. This preliminary objection of the State of U.P. is therefore rejected." If the subsequent overruling of the judgment on the same issue between the same parties cannot unsettle the earlier decision between the same parties, it is not understood as to how the department can be allowed to challenge the correctness of the earlier orders passed by the Commissioner (Appeals) and this Hon'ble Authority on the same subject matter. 4.3 Coming to the ground raised by the department regarding failure on the part of the Commissioner (Appeals) to follow the directions contained in the remand order of the Tribunal, it is submitted that the Commissioner (Appeals) had already decided the issue in accordance with law. The Commissioner (Appeals) in his order dated 25-8-2005 had based his findings on the Circular of the Board as well as two decisions of the Hon'ble Tribunal. It was therefore not necessary for the Commissioner (Appeals) to advert to the issue which was already decided by him in accordance with the law. As such the order of the Commissioner (Appeals) challenged in the present revision applica....

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.... clearance for export could not be taken upon himself in demand duty or impose penalty under Rule 14A of the Central Excise Rules, 1944 in the facts and circumstances of the instant case. Even now it is not too late, if the bond(s) is/are in force, to observe the appropriate procedure. But that would not validate the lower authorities action in the present case." 4.5 In view of the submissions made above, the revision filed by the Commissioner of Central Excise, Nagpur, has to be dismissed at the threshold on the aspect of non-maintainability and in the alternative on merits being contrary to the Board's Circular and the decisions of the Hon'ble Tribunal. 4.6 For proper understanding of this issue relating to year, 1995, the respondent submitted the history of chronological events as under: 4.7 Sl. No. Date Events 1. 27-10-1994 to 21-1-1995 We cleared for export 10 consignments of galvanized steel angles under 10 different AR4s involving Central Excise Duty amounting to Rs. 8,12,492/- through Merchant Exporter, M/s. Akai Impex Ltd. 2. 18-4-1995 to 3-7-1995 Since the proof of export was not received within a period of 6 months from th....

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....ed as above, was dismissed by Commissioner (Appeals) vide his order-in-appeal No. YPP/520/M-III and NGP on the ground of non-compliance with the provisions of Section 35F of the Act. 13. -- The order of Commissioner (Appeals) referred to above was challenged by us before CESTAT Mumbai. 14. 27-2-2002 The CESTAT vide its order No. C-II/907-08/WZB/2002, refused to entertain the appeal on the ground that it had no jurisdiction to entertain the appeal by virtue of second proviso of Section 35B of Central Excise Act. 15. 18-4-2002 We thereafter filed a revision application in the office of this Hon'ble Authority. 16. 27-8-2002 The Hon'ble Authority vide order No. 236/2002, dated 27-8-2002 rejected the revision application on the ground that the same had been filed beyond period of limitation which was also not condonable in terms of Section 35EE of the Act. 17. -- The above-mentioned order passed by this Hon'ble Authority was challenged before the Nagpur Bench of the Bombay High Court vide Writ Petition No. 578/2004. 18. 7-12-2004 The Hon'ble High Court allowed the writ petition and remitted the revision petition back to this Hon'ble ....