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Judgment
Counsel for the appellant has taken us to the judgment in Union of India v. Kamalakshi Finance Corpn. Ltd. (1991) 55 ELT 433 (SC), wherein it
has been held as under:-
“6. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps
genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is
that we are not concerned here with the correctness or otherwise of their conclusion or of any factual malafides but with the fact that the officers, in
reaching in 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 heirarchy. It cannot be too
vehemently emphasised that it is of utmost importance that, in disposing of the quasijudicial 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 authority is not ""acceptable"" to the department - in itself an objectionable phrase - and is the subject
matter 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.â€
He has also relied on the judgment of the Supreme Court in Onkarlal Nandlal Vs. State of Rajasthan and Ors. (1985)4SCC404, wherein it has been
held as under:-
“3. Now at the outset we should like to make it clear that ordinarily we do not entertain an appeal directly against an order made by an officer in
the hierarchy, when there are other remedies by way of appeal or revision provided to an assessee under the statute. Here the assessee could have
preferred an appeal against the order of assessment made by the Commercial Tax Officer and he could have then gone in revision to the Board of
Revenue and thereafter to the High Court under Article 226 or 227 of the Constitution and then, if he was aggrieved by the order passed by the High
Court, he could come to this Court under Article 136. We would have ordinarily insisted on the assessee going through this hierarchy of judicial
process and declined to entertain the petition for special leave directly against the order of assessment made by the Commercial Tax Officer, But we
were informed by the learned Advocate appearing on behalf of the assessee, and this was not controverted by the learned advocate appearing on
behalf of the Department, that the High Court in another case has already taken the view that when a resale is made by an assessee which is in the
course of inter-State trade or commerce, it cannot be regarded as a resale within the State and hence such resale would constitute a breach of the
Declaration given by the assessee to the selling dealer so as to attract of the applicability and the purchase price paid by the assessee would
consequently be liable to be included in the taxable turnover of the assessee. It would therefore, argued the learned Counsel for the assessee, be futile
to drive the assessee to the procedure of appeal and revision and then a Writ Petition to the High Court. This contention urged on behalf of the
assessee had force and we accordingly granted special leave and entertained this appeal. Similarly we granted special leave in the other cases as well
and hence those appeals are placed before us alongwith this appeal. â€
Further, he has also relied to the judgment in Mangal Textile Mills (India) Pvt. Ltd. Vs. Union of India 2015(320)ELT529(Guj.) wherein it has been
held as under:-
“7. We have heard the learned advocates. Looking to the fact that, while passing the impugned order, respondent No. 2 did not consider the
principle laid down by the CEGAT especially when the items, which were to be considered by respondent No. 2 and the items considered by the
CEGAT in its earlier order were the same, in our opinion, respondent No. 2 has committed an error in not following the order passed by the CEGAT
in the case of the petitioner.
For the aforestated reason, we quash and set aside the impugned order passed by respondent No. 2. Respondent No. 2 shall decide the appeal in
the light of the observations made by the CEGAT in its order dated 21-11-2002 in the case of the petitioner and shall decide the matter afresh after
hearing the petitioner.â€
However, he has also relied to the judgment in Birla Corporation Ltd. Vs. Commnr. of Central Excise 2005(186)ELT266(S.C.), wherein it has
been held as under:-
“5. In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a
different stand in this case. The earlier appeal involving identical issue was not pressed and was therefore, dismissed. The respondent having taken a
conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. (supra) cannot be permitted to take the opposite stand in this case.
If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary.â€
The counsel for the petitioner contended that in the case of petitioner himself, there is already concluded decision in favour of assessee in two
reported judgments in M/s. Ravi Kiran Plastics Pvt. Ltd. & ors. Vs. CCE and S.T., Vadodara, 2014 (303) ELT 144 (Tri. Ahmd.) and Symphony
Comfort Systems Ltd. Vs. Commr. Of C. Ex. & S.T. Vadodara, 2016 (334) ELT 82 (Tri.-Ahmd.) against which the Supreme Court has only issued
notices after condoning delay and inspite of specific guidelines of Department in para 9.3 of Call-Book Cases which reads as under:
9.3 Call-Book Cases: A call book of cases is maintained of such cases which cannot be adjudicated immediately due to certain specified reasons and
adjudication is to be kept in abeyance. The following categories of cases can be transferred to call book:-
I. Cases in which the Department has gone in appeal to the appropriate authority.
ii. Cases where injunction has been issued bySupreme Court/High Court/CEGAT, etc.
iii. Cases where the Board has specifically orderedthe same to be kept pending and to be entered into the call book.
iv. Cases admitted by the Settlement Commissionmay be transferred to the Call-book, as it is already covered under Category (ii) above. Where there
are multiple noticees, the case can be transferred only in respect of those noticees who have made application in the Settlement Commission, and
whose case has been admitted by Settlement Commission, Cases shall be taken out of the Call-Book after Settlement Order has been issued or where
the case has been reverted back for adjudication.
He contended that the authority has wrongly rejected the case of the petitioner and passed an order of imposing penalty. If indiscipline is allowed
to be maintained, the business of the petitioner will be stopped since the assessment which has been made is arbitrary and with a view to ruin the
business of the petitioner and the petitioner has approached this Court in view of the aforesaid decisions.
In view of the above, Admit. Issue notice.
In the meantime, the order of the authority dated 24.5.2018 (Annex.B) is stayed.
The matter is fixed for final hearing on 5th September, 2018.