2006 (8) TMI 189

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....ck to the appellate authority for redecision in the light of the observations made in the impugned order. 2.The assessee, a public limited company registered under the Companies Act, 1956, is engaged in the business of manufacture of turbines and parts of turbines which are classifiable under Chapter Headings 8410.10 and 8410.90 of the Schedule to the Central Excise Tariff Act, 1985 [for short "the Tariff Act"]. The assessee-company is located at Hoskote in Bangalore. The assessee was served with a notice dated 25th January, 1999 proposing to deny the benefit of exemption under Notification No. 205/88-C.E. and subsequent Notification applicable to the clearance of the turbines manufactured by it which were cleared in completely knocked d....

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....on in the light of the observation made in the order. 7.During the course of arguments before the Tribunal, learned Counsel appearing for the assessee had placed reliance upon an earlier decision of the Tribunal in Sulzer Flovel Hydro Ltd. v. Commissioner of Central Excise, Delhi-II [2004 (176) E.L.T. 195 (Tri-Del.)]. Sulzer Flovel Hydro Ltd. is also in the business of manufacture of turbines and parts of turbines. The said case was similar to the case in hand. In Sulzer Flovel Hydro Ltd., the benefit of exemption under Notification No. 5/99-C.E. was granted to the assessee. Tribunal in the present case has not disputed the principle laid down in the Sulzer's case (supra) but held that the decision in the Sulzer's case (supra) was distin....

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....The department cannot pick and choose. [See : The decisions of this Court in Union of India & Others v. Kaumudini Narayan Dalal & Another - (2001) 10 SCC 231; Collector of Central Excise, Pune v. Tata Engineering & Locomotives Co. Ltd. - 2003 (158) E.L.T. 130 (S.C.); Birla Corporation Ltd. v. Commissioner of Central Excise -2005 (186) E.L.T. 266 (S.C.); and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur - 2006 (195) E.L.T. 142 (S.C.). It has been held in all these cases that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the Revenue, the Revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd. (supra), this ....