TaxTMI 
TaxTMI 
2019 (7) TMI 762
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....ws:- SI. No Date of Show Cause Notice Period covered Date of order of Adjudicating Authority Order No. of Adjudicating Authority Demand confirmed (In Rs.) Appeal No. Before Comm. (Appeals) 1. 2 3 4 5 6 7 01. 25/11/2012 Nov.-2011 to Mar.-2012 25.02.2014 08/2014 6,37,631/- 315/2017 02 25/04/2013 April 2012 to Feb.-2013 21.08.2015 16/2015 14,17,292/- 316/2017 03 05/03/2014 March-2013 to Oct.-2013 21.08.2015 17/2015 32,20,922/- 317/2017 3. It can be seen from the aforesaid table that three show cause notices dated 25 November 2012, 25 April, 2013 and 5 March, 2014 were issued to the respondent for three different periods. It was mentioned in all the three show cause notices that the respondent was engaged in the manufacture of SS Cold Rolled bottled Patta, SS Circle and SS Utensils falling under Chapter 72 of the First Schedule to the Central Excise Tariff Act, 1985. It paid duty on transaction value in terms of Section 4 of the Central Excise Act, 1944 though the aforesaid products (except a small portion) were sold to its sister concern M/s Sunshine Steel Industries which fell within the definition of a 'related person' and thi....
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.... the monetary limit was less than Rs. 20 Lakhs. 8. When the matter was taken up by the Tribunal on 19 February, 2019, a preliminary objection was raised by the learned Counsel for the Respondent that if two Appeals are withdrawn than in that situation, the order passed by the Appellate Authority in these two Appeals bearing No's. 315/2017 and 316/2017 would attain finality and, therefore, this Appeal bearing No. 317/2017 would have to be dismissed. Learned Authorized Representative of the Department, however, sought time to seek instructions. 9. On 15 April, 2019 when the matter was next taken up, the learned Authorized Representative of the Department placed the communication dated 13 March, 2019 sent by the Assistant Commissioner to the Commissioner (AR) in which it has been reiterated that the Department intends to file only one appeal against the order passed Appeal No. 317 of 2017. Thus, as the Department itself had filed an application with a prayer that this appeal should be confined to the Appellate order passed in Appeal No. 317/2017, the application was allowed and it was directed that the present appeal shall be treated to have been filed against the order dated 30 No....
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....ve three show cause notices dated 15 November, 2012 (for the period November, 2011 to March 2012), 25 April, 2013 (for the period April, 2012 to February, 2013 and 5 March, 2014 (for the period March, 2013 to October, 2013) were issued to the respondent. The charge contained in all the show cause notices was identical except for the period in dispute. It was mentioned in all the show cause notices that the respondent was engaged in the manufacture of SS Cold Rolled bottled Patta, SS Circle and SS Utensils falling under Chapter 72 of the First Schedule to the Central Excise Tariff Act, 1985. It paid duty on 'transaction value' in terms of Section 4 of the Central Excise Act, 1944, though the aforesaid products (except a small portion) were sold to its sister concern M/s Sunshine Steel Industries which fell within the definition of a 'related person' and it had used these materials for the manufacture of SS Utensils. It was, therefore, alleged that the goods were required to be valued as per Rule 9 read with Rule 8 of the 2000 Rules. Thus, the common issue that arose for determination in all the three show cause notices was as to whether the valuation of the excisable goods for purpo....
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.... Supreme Court Rs. 1,00,00,000/- 2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the High Courts, CESTAT and Commissioner (Appeals). All other terms and conditions of concerned earlier instructions will continue to apply 4. It may be noted that issues involving substantial questions of law as described in para 1.3 of the Instruction dt 17.08.2011 from F No 390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits 18. The issue, therefore, that arises for consideration in this appeal is whether the present appeal should be dismissed for the reason that the two Appellate orders deciding the same issue between the same parties, had attained finality. 19. In this connection it would be pertinent to refer to the decision of the Supreme Court in Sheodan Singh v Daryao Kunwar reported in AIR 1966 SC 1332. The Supreme Court noticed that the judgment of the Addit....
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....its Nos. 77 and 91 was that the decision of the trial Court was confirmed with respect to the common issues as to title by the High Court. In consequence the decision on those issues became resjudicata so far as appeals Nos. 365 and 366 are concerned and s. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 must fail." (emphasis supplied) 20. The Supreme Court held where the trial court decides two suits having common issues on merits and two appeals are filed out which one appeal is dismissed on a preliminary ground like limitation or default in printing, the result would be that the Trial Court decision stands confirmed and so the decision of the Appellate Court will then operate as res-judicata and the remaining appeal would have to be dismissed. Thus, for this reason the remaining two appeals were rightly dismissed by the High Court because the Trial court had decided all the four suits on merits, including the decision on the common issues. 21. It would also be useful to refer to the decision of th....
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.... former suit. The paragraphs dealing with this issue are reproduced below:- "30. It would not be logical to overlook that the pleadings on behalf of the Tenant were common in all three suits, and that Issues on this aspect of the dispute had been claimed by the Tenants in all the three suits. On a holistic and comprehensive reading of the pleadings of the Tenant in all the three suits, it is inescapable that the Tenant had intendedly, directly and unequivocally raised in its pleadings the question of the title to the demised premises and the legal capacity of the Trustees to convey the lands to the Transferees. This is the common thread that runs through the pleadings of Tenant in all three suits. It is true that if O.S.5/78 was a suit for injunction simpliciter, and in the wake of the stance of the Trustees and Transferees that no threat had been extended to the Tenants regarding their ouster, any reference or challenge to the ownership was wholly irrelevant. But the ownership issue had been specifically raised by the Tenant, who had thus caused it to be directly and substantially in issue in all three suits. So far as the Suit Nos.6/78 and 7/78 are concerned, they were also sui....
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....r Bench. It was for this reason that we thought it appropriate to deal with the dispute in detail. It seems to us that had the decisions of the three Judge Bench in Lonankutty and Prabhu been brought to the attention of our Learned and Esteemed Brothers on the earlier occasion when this appeal was heard by two Judge Bench, the dichotomy in opinion would not have arisen. The outcome of the appeal before the High Court would have also shared a similar fate. 33. On the foregoing analysis, especially the previous enunciation of law by three Co- ordinate Benches, we are in agreement with the opinion of our Learned Brother Asok Kumar Ganguly that the appeal calls to be allowed. We are of the opinion that having failed or neglected or concertedly avoided filing appeals against the decrees in O.S.5/78 and O.S.7/78 the cause of the Respondents/Tenants was permanently sealed and foreclosed since res judicata applied against them. We accordingly allow this Appeal but keeping the varying verdicts in view decline from making any order as to costs." (emphasis supplied) 23. Sheodan Singh was a case where four appeals were filed in which common issues were involved and since two appeals had ....
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....to press the application for withdrawal of the two appeals. The application was, accordingly, allowed. It is thus clear that despite an objection having been raised by learned Authorized Representative for the Respondent, the Department withdrew two appeals. The order passed in these two appeals has attained finality. It is not disputed by the Appellant that the issue involved in all the three show cause notices, the order of the Adjudicating Authority and the order passed by the Commissioner (Appeals) is identical. 26. Though res judicata may not strictly apply to the orders passed by the Commissioner (Appeals), but the aid of such principles can be taken. In the present case if this appeal is allowed, two inconsistent orders will come into existence. The present appeal, therefore, is liable to be dismissed for this reason. 27. It will also be useful to refer to the decision of the Chhattisgarh High Court in Commissioner of Central Excise, Custom & Service Tax, Raipur V/s Shivalaya Ispat & Power Pvt. Ltd. reported in 2018 (360) ELT 914 (Chhattisgarh). The Tribunal passed a common order against the Company imposing penalty upon the Company as also its Directors. The Revenue file....