Customs, Excise and Gold Tribunal - Calcutta
Kalinga Weavers Co-Operative Spinning ... vs Commissioner Of Central Excise And ... on 20 December, 2001
JUDGMENT
Archana Wadhwa
1. The appellant are absent, in spite of today's notice of hearing having been sent to them well in advance. Accordingly, we have heard Shri A.K. Mondal, learned J.D.R. for the Revenue and gone through the impugned Order.
2. The Deputy Commissioner of Central Excise & Customs, Cuttak, vide his impugned Order adjudicated the case in the de novo proceedings, in terms of the directions contained in the Tribunal's Order No.A-801/CAL/98 dated 27.8.98. The Tribunal in the said Order had observed as under:-
"After giving our careful consideration to the issue involved, we find that the same is covered by the two decisions relied upon by the learned Advocate. As such, we find that denial of the benefit of the notification on the ground that payments were not made either by cheques but were made by bank drafts or by letters of credit, is not justified. However, we find from the impugned Order as well as by the order passed by the Assistant Commissioner that the appellants have not been able to make correlation between the gate passes and payment received by them. At this stage, Shri Mookherjee undertakes to place on record before the authorities below the correlation documents and pray that for his limited purpose, the matter may be remanded.
Accordingly, after allowing the appeal on principle, we remand the matter to the Assistant Commissioner for correlation purposes. Appeal disposed off in above terms."
In terms of the above Order, the Deputy Commissioner took up the matter and verified various correlation documents. Accordingly, he concluded that the payment received by the assessee is relatable to the clearances made by the assessee through duty paying documents. The demand of differential duty was thus dropped by him.
3. The Revenue being dissatisfied with the said Order of the Deputy Commissioner filed an appeal against the same before the Commissioner (Appeals). The Commissioner (Appeals) vide his impugned Order observed as under:-
"The only matter that needs a decision in this appeal is whether payment by draft through letter of credit is acceptable in lieu of payment by cheque. The only difference between demand draft and cheque is that even through both the documents are negotiable instruments, draft can be made through a Bank by depositing cash whereas cheque would have to be drawn from the account of the payee.
Notification 53/91 has made a specific mention of cheque for the simple reason that the beneficiary of the exemption should also be the actual user. For this reason the word used for the Notification is cheque and not cheque or demand draft. To this extent the specific procedure required by the notification not having been followed benefits of the said exemption can not be allowed vide Hon'ble Supreme Court's decision in Mihir Textile case reported in 1997(92) ELT-009(SC). Accordingly appeal of the Deptt. is allowed and the case returned to the Deputy Commissioner for denovo adjudication as per law relating to principle of natural justice. The appeal is accordingly disposed."
4. We find that the issue whether the payments made by draft in lieu of cheque fulfilled the criteria of the Notification or not, was finally decided by the Tribunal vide its Order dated 27.8.98, when the appeal was allowed in principle and the matter was remanded to the Assistant Commissioner only for limited purposes of correlation. As such, it was not open to the Commissioner (Appeals) to again decide upon the same issue and given a finding different than the one given by the Tribunal. In fact, it is seen that the appellate authority has misdirected herself while deciding the issue of availability of notification. The matter having been once decided by the Tribunal was no longer open to the appellate authority for fresh decision. Inasmuch as there is nothing in the Commissioner (Appeals') Order as regards correlation aspect, we set aside the impugned Order of the Commissioner (Appeals) and allow the appeal with consequential reliefs to the appellants.
5. Before parting, we would also like to observe here that the Tribunal in a number of decisions has repeatedly held that the benefit of the Notification No. 53/91 is not to be denied to the appellants on the sole ground that the payments for purchase of yarn have been mae by bank draft instead of cheque.
6. One of such decisions is in the case of Modern Syntax India Ltd. and Others reported in 1999 (33) RLT-953 (CEGAT). The reference by the Commissioner (Appeals) to the decision of the Hon'ble Supreme Court in the case of Mihir Textile given in a different set of circumstances, is not applicable.
7. As already observed, the impugned Order of the Commissioner (Appeals) is set aside and the appeal is allowed with consequential reliefs.
(Pronounced)