TaxTMI 
TaxTMI 
2005 (7) TMI 112
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....Ref., dated 3rd February, 2005 (Annexure "H"). 2. The petitioner, a Private Limited Company, manufactures Diesel Engines which are admittedly classified under Heading 84.08 of the Central Excise Tariff Act. The Engines are cleared for home consumption on payment of excise duty. The Engines are also removed for captive consumption for manufacturing Centrifugal Pumps commonly described as couple sets. The Excise Department took a view that the Diesel Engine, when cleared for captive consumption, was not chargeable to duty in view of the Notification No. 4/97-C.E., and Notification No. 5/98-C.E. as well as similar Notifications issued from time to time in each financial year and therefore, since the final product, namely, the Diesel Engine ....
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.... The aforesaid order of the Tribunal was made on 23-7-2003. 3. The petitioner in consonance with the order of the Tribunal moved respondent No. 3 vide communication dated 10-11-2004 informing him that the amount reversed under Rule 57CC was liable to be credited in the credit account and sought necessary rectification in this regard. To this, respondent No. 3 replied vide communication dated 7-12-2004 (Annexure "F") wherein it is stated as under : "In this regard, I have been directed by the Assistant Commissioner, C. Ex. Dn-I, Rajkot to inform you not to take credit in your account till the amount sanctioned by the adjudicating authority and sanctioned amount not transferred from the Consumer Welfare Fund to Govt. Account. ....
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....s become final, there being no challenge to the said order. In the circumstances, the respondent authority could not have undertaken to ignore the said order by raising an issue which, to say the least, is a non-issue. The Tribunal, in its order dated 23-7-2003, has categorically held in paragraph No. 2(b) that, "Engines are cleared for home consumption on payment of excise duty". Nothing has been brought on record to show that the aforesaid finding of fact recorded by the final fact finding authority is incorrect in any manner whatsoever or is not supported by evidence. In fact, as noted hereinbefore, the order of the Tribunal, has attained finality and in the circumstances, it is not possible for any subordinate authority to go behind the....
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....en stayed by a competent higher forum. In the present case, admittedly the order of Tribunal has not been challenged further. In the circumstances, subordinate authority is bound to follow the same and implement it without any reservation. 9. Vide Circular No. 695/11/2003-C.X., dated 24th February, 2003, the Central Board of Excise & Customs has laid down as to in what circumstances the goods must be released or refund must be granted and in this connection, it is stated that "The order of High Court or Tribunal should be implemented unless a stay has been obtained from the higher judicial forum on the implementation of the order. Further, consultation with Board in such cases may cause into delay in finalization of the refund claims". A....
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....ciation of facts and accordingly, the appeal has been restored to original number. 13. Therefore, the reliance by the respondent on the order of the Tribunal which does not exist any more is misplaced. Even otherwise, it goes without saying that when there are two conflicting orders, one of a Single Member and one by a Division Bench, the order issued by the Division Bench would prevail. 14. In the show cause notice, the respondent No. 3 has placed reliance on Circular No.224/58 of 96-CX., dated 26-6-1996. It is an admitted position that the said circular was cited before the Tribunal in the petitioner's case and has already been considered. Therefore, apart from the position in law as to judicial discipline being required to be m....