TaxTMI 
TaxTMI 
2021 (4) TMI 138
X X X X Extracts X X X X
X X X X Extracts X X X X
....en filed by the petitioner challenging the show cause notice dated 30.03.2012 and the impugned order dated 27.01.2020 passed by the respondent No. 3, whereby the refund claims of the petitioner for the period of October 2010, November 2010, December 2010, January 2011, February 2011, March 2011, April 2011, May 2011, June 2011, July 2011 and August 2011 amounting to Rs. 14,54,228/-. WP(C) No. 2189/2020 filed by the petitioner challenging the show cause notice dated 08.11.2010 and the impugned order dated 27.01.2020 passed by the respondent No. 3 rejecting the claim for duty paid for the period of September 2009, October 2009, November 2009, December 2009, January 2010, February 2010, March 2010, May 2010, June 2010, July 2010, August 2010 amounting to Rs. 26,42,418/-. WP(C) No. 2810/2020 has been filed by the petitioner challenging the non-processing of its refunds of claims for the period of September 2011 to May 2012 amounting to Rs. 9,78,552/-. WP(C) No. 2101/2020 filed by the petitioner challenging the show cause notice dated 03.06.2011 and the impugned order dated 18.12.2019 passed by the respondent No. 3 amounting to Rs. 21,71,123/- confirming the demand of excise du....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reed with views of respondent No. 3 and directed the respondent No. 3 to file appeals before the Higher Appellate Authority, namely, the Commissioner (Appeals) Central Excise. 5. The Commissioner (Appeals) by its order dated 26.02.2010 rejected the appeals filed by the Department/revenue and held that adjudicating authority, namely, respondent No. 3 had correctly considered and granted the refund orders to the petitioner. Accordingly, the appeals filed by the revenue were rejected. Being aggrieved, the revenue carried the appeals before the Central Excise and Service Tax Appellate Tribunal, Kolkata (hereinafter referred to as "CESTAT"). The CESTAT, however, by its order dated 27.11.2017 dismissed the appeals as the same were below the permissible monetary limits prescribed in respect of litigations to be pursued by the Department/Revenue as per Central Board of Excise and Customs (CBEC) instructions dated 17.12.2015 which was issued in terms of the National Litigation Policy. Against the rejection orders passed by the CESTAT, no further appeal or review was preferred by the Department and consequently the orders passed by the Commissioner (Appeals) upholding the refund orders is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....effective orders are been sought for from this Court by way of W.P(C) No. 2810/2020. 7. The contentions raised by the petitioner questioning the impugned rejection of refund order is that the impugned orders dated 27.01.2020 and recovery of demand vide order dated 18.12.2019 could not have been passed by the respondent No. 3 in the face of the order dated 26.02.2010 passed by the Commissioner (Appeals) which is a higher statutory authority. The learned counsel for the petitioner submits that there is no provision under the Central Excise Act and the Rules framed thereunder which permits Subordinate Authority like the respondent No. 3 to disregard the orders passed by the higher authority like the Commissioner (Appeals) and disregard their findings on facts in favour of the assessee. The further submission of the learned counsel for the petitioner is that the appeals filed by the Revenue/Department against the orders of Commissioner (Appeals) before the CESTAT were dismissed before the CESTAT vide order dated 27.11.2017 as the same were below the monetary limits prescribed by the Central Board of Excise and Customs (CBEC) instruction dated 17.12.2015. In that view of the matte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vailed of nor has any explanation been furnished as to why the same were not availed of. Under the circumstances, the learned department counsel submits that the writ petitions be dismissed as being devoid of any merit and not maintainable. 11. Having heard the learned counsels for the parties and having perused the pleadings available on record, the short question which arise for consideration of this Court is:- Whether an order passed by an authority under the Central Excise Act and Rules framed thereunder, namely, the respondent No. 3 herein, whereby refunds were granted earlier to the petitioner/assessee and which order was upheld by the Commissioner (Appeals) coupled with the fact that the further appeals preferred by the Department/Revenue was dismissed on technical ground, namely, the same being below the prescribed minority limit in terms of the Central Board of Excise and Customs (CBEC) instruction dated 17.12.2015, can be re-visited collaterally by another authority? 12. After hearing the learned counsels and after perusal of the pleadings available on record, it is seen that the petitioners claimed refunds for the months of May 2009, June 2009 and July 200....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mentioned the fixed capital investment in the unit (Rolling Mill unit of Gemson Melt Pvt. Ltd.), before the expansion was Rs. 38,01,837/- which was the position as on 31.03.2007. As regards non declaration of the actual date of commencing the expansion programme they stated that, the expansion programme was completed only on 6th June, 2007 and on the same date all the investment made till date on the expansion programme was capitalized and till then whatever investment had been made had only to be classified as work-in-progress till completion of installation of plant & machineries. The details of machineries, equipments, etc. procured were duly intimated to the department alongwith the date of purchase. The source of acquisition of the assets and statements of records/ documents submitted by the respondent on various dates would clearly indicate that the, expansion programme commenced in the year 2005. Further this requirement is not the condition precedent in the Notification No.20/2007 CE dated 25.04.2007. Further, they stated that the quantum of increased investment of Rs. 65,58,577/undertaken during 01.04.2007 to 06.06.2007 upon the existing investment of Rs. 38,01,837/- as on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....indings of the Commissioner (Appeals) in its order dated 26.02.2010 is not referred to in the said show cause notice issued by the respondent No. 3. The respondent No. 3 by impugned order dated 27.01.2020 rejected both refunds claim of the petitioner, namely, refund of Rs. 26,42,418/- for the month September, 2009, September, 2010 Rs. 14,54,228/- for the months of October, 2010 to August, 2011. In the recital of the impugned order the respondent No. 3 refused to accept that the petitioner complied with the requirement of the Notification No. 20/2007 dated 25.04.2007 regarding investments of fixed assets more than 25% towards expansion of the manufacturing unit. Although, the order of the Commissioner (Appeals) is referred to, however, the respondent No. 3 did not elaborate as to why it disagreed with the findings of the Commissioner (Appeals) although, the petitioners submitted their objections in response to the said show cause notice and had also referred to the findings of the Commissioner (Appeals) therein. The respondent No. 3 in its order held that although the appeals before the CESTAT have been withdrawn on the basis of monetary limits for pursuing litigation as prescribed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 35-E(1) or (2) to keep the interests of the department alive. If the officer's 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." 16. The finding of fact recorded by the Commissioner of Appeals in respect of the fulfillment of the requirement under Notification No. 20/2007 dated 25.04.2007 by the petitioner, in view of the dismissal of the Revenue appeals by the CESTAT has attained finality. Such findings of fact cannot be unilaterally disregarded by the Departmental Officer merely because it was not agreeable to them. It was incumbent upon the respondent No. 3 to reflect in its order, impugned in the present proceedings, the grounds and reasons for disregarding the said finding of fact by the Commissioner (Appeals) 17. In the absence of any clear finding by the respondent No. 3 to support its disagreement with the finding of fact by the Commissioner of Appeals, mere disagreement with the order of the Higher Authority, namely, Commissioner (Appeals) will be opposed to the Principle of judicial discipline required to be maintained by Quasi Judicial Officers exercising....