TaxTMI 
TaxTMI 
2015 (7) TMI 1112
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....he Custom Duty leviable on similar goods if imported in India in case of DTA clearances made by the respective petitioner companies. 2.1. The respective petitioners have also challenged the impugned show cause notices, the particulars of which are given in respective show cause notices, by which, the respective petitioners are called upon to show cause why the short payment of education cess and secondary and higher education cess should not be demanded and recovered from them under the provisions of Section 11A (1) of the Central Excise Act, 1944 r/w Section 93 of the Finance (No.2) Act, 2004 and Section 138 of the Finance Act, 2007. 2.2. The respective petitioners have challenged the impugned show cause notices on the ground that issue sought to be raised by the department in such show cause notices is already held in favour of the assessee by virtue of judgments of the Tribunal in the case of these very assessees. It is the case on behalf of the respective petitioners that further appeals by the department to the Supreme Court has been rejected as time barred. It is the case of the respective petitioners that in the past similar show cause notices have been issued, the sam....
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.... ultimately matter can be carried to the Hon'ble Supreme Court. It is submitted that in taxation, each year is separate and distinct and in subsequent year it would always be open for the department to raise demand, for which, show cause notices are required to be issued and therefore such notices have been issued. It is submitted that if the department is precluded from raising such demand and / or issue show cause notice the validity of the Tribunal's view would never be tested before the Higher Court. It is submitted that therefore, to keep the issue alive and so as to see that ultimately department can approach the Hon'ble Supreme Court, when the department has issued the show cause notice, it cannot be said that the authority has committed any error and / or illegality in issuing the impugned show cause notices. 4.2. It is further submitted by Shri Ravani, learned advocate for the department that even in the earlier decision in the case of Claris Lifesciences Limited (supra) even the Division Bench had specifically observed and clarified that allowing the aforesaid Special Civil Application would not been seen as any indication of our view of upholding the view ....
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....n the other hand, it is the case of the department that as such department does not accept the decision of the learned Tribunal dated 21.06.2010 and as such department did challenge the decision of the Tribunal before the Hon'ble Supreme Court, however the department lost before the Hon'ble Supreme Court solely on the ground of limitation. Therefore, it is the case on behalf of the department that only with a view to keep the issue alive so that ultimately matter can be carried to the Hon'ble Supreme Court, impugned show cause notices have been issued. 7.0. It is true that the decision of the Tribunal dated 21.06.2010 is as such binding to the adjudicating authority. Being the subordinate to the Tribunal, the adjudicating authority cannot take contrary view than the view taken by the learned Tribunal. In the case of Kamlakshi Finance Corporation Ltd (supra) in para 6 and 7 the Hon'ble Supreme Court has observed and held as under: "6...It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasijudicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the A....
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....llow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the hands of the same officer. He has only to bring the matter to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under S.35E(1) or (2) to keep the interests of the department alive. If the officers view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail." 8.0. However, the view of the higher authority or the Tribunal can be further carried to the High Court or Supreme Court and for that adjudicating authority is required to issue show cause notice so that ultimately matter can be carried to the Higher Court/ Forum. However, so far as adjudicating authority is concerned, being subordinate to the Tribunal, it is bound to follow the decision of the learned Tribunal. However, it will always been open for the department to call in question such a view in a....