TaxTMI 
TaxTMI 
2015 (7) TMI 1112
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....n all these petitions respective petitioners have prayed for an appropriate writ, direction and order, more particularly, writ of prohibition prohibiting the respondents, their servants and agents from taking any action against the respective petitioner companies for recovering and collecting Education Cess as well as Secondary and Higher Education Cess on the excise duty calculated as an amount equal to the 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....
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....ices issued by the department have been set aside by the Division Bench of this Court. 3.1. It is vehemently submitted by Shri Dave, learned advocate for the respective petitioners that as such authority who has issued the show cause notice is subordinate to the learned Tribunal and therefore, even if the show cause notices are adjudicated upon; the adjudicating authority is bound to obey and follow the decision of the Tribunal and cannot take a contrary view than the view taken by the learned Tribunal. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Union of India vs. Kamlakshi Finance Corporation Ltd reported in 1991(55) ELT 433 (SC). Making above submissions, i....
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.... 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 of the Tribunal contained in its decision dated 21.6.20....
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....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. It is the case on behalf of the respective petitioners that aforesaid issue is as such concluded in favour of the assessee in view of the decision of the learned Tribunal dated 21.6.2010 and therefore, it is not open for the respondent / adjudicating authority to issue show cause notice and to reagitate the same issue again. It is also the case on behalf of the petitioners....
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....diction of the Tribunal. 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 departmentin itself an objectionable phraseand is the subjectmatter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessees contention, the department would lose revenue and would also have no ....
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....e 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 t....