Customs, Excise and Gold Tribunal - Delhi
Uma Laminated Products Pvt. Ltd. vs Collector Of C. Ex. on 25 July, 1988
Equivalent citations: 1989(40)ELT152(TRI-DEL)
ORDER V.T. Raghavachari, Member (J)
1. The appellants M/s. Uma Laminated Products Private Limited filed a refund claim following the order-in-appeal No. 881 dated 9.2.81 of the Appellate Collector. The Assistant Collector having rejected the said claims an appeal was filed. Under order dated 22.10.83 the Appellate Collector remanded matter to the Assistant Collector. No copy of the said order is available. It is mentioned in the grounds of appeal that under the said order the Collector (Appeals) directed the Assistant Collector to consider the claim de novo in the light of the decisions of this Tribunal in the case reported in 1983 ECR 799 and 1983 ECR 1349. After such readjudication the Assistant Collector again rejected the refund claim under his order dated 26.7.84. The appeal against the same was dismissed by the Collector (Appeals) under his order dated 21.12.84. This appeal is against the said order.
2. The appellants have intimated under their letter dated 2.5.88 that they will not be attending the hearing. They have enclosed a written submission in which they had stated as follows:
"For the time being, the appellant's prayer is that the refund claim should be kept alive, because the issue involved is subject matter of an appeal in the Supreme Court. The reference particulars of this appeal are cited under item No. 10 of the Statement of Facts."
The prayer is just. It does not involve hold-up of any amount due to the Government.
The appellant prays that the appeal may be decided by passing suitable orders, so that the refund claim is kept alive and it is eventually decided in the light of the judgement of the Supreme Court after it is delivered."
We have heard Shri K.P. Singh for the Department and have perused the records.
3. To understand the scope of the proceedings in this appeal it would be appropriate to state certain facts. The refund claim in question had been filed following the order-in-appeal dated 9.2.81 under which the Appellate Collector had gone into the question of classification of the product manufactured by the appellants. It was following the said classification that the appellants had filed the refund claim. The refund claim having been dismissed by the Assistant Collector the appellants had preferred an appeal. As earlier mentioned the copy of the order passed in that appeal is not available to us. It appears from the memorandum of appeal that the Collector (Appeals) remanded the matter to the Assistant Collector for going into the matter afresh with reference to the decisions of this Tribunal cited supra. But before the matter was again decided by the Assistant Collector the Tribunal had in another case of these appellants themselves held against them on the question of the classification and liability for duty. Therefore, following the said decision the Assistant Collector had again rejected the refund claim. The appeal against the same was dismissed by the Collector (Appeals) since he held that in view of the decisions of this Tribunal in the case of the appellants themselves their refund claim was not maintainable.
4. It appears from the records that the appellants had preferred an appeal to the Supreme Court against the decision of this Tribunal under its order No.C-95/84 dated 20.2.84 and the Supreme Court has admitted the appeal and had ordered it to be listed for hearing. It appears that the said appeal before the Supreme Court is not yet disposed of.
5. That is why in their submissions sent along with their letter dated 2.5.88 the appellants have requested that we may so dispose of this appeal as to keep their refund claim alive. Therefore, they also, in effect, do not dispute that in view of the earlier judgement of this Tribunal in their case, their refund claim would not be now maintainable though it may be maintainable if the Supreme Court allows their appeal and accepts their contention. But the fact remains that the Supreme Court is yet to rule on that matter and, therefore, the judgement of this Tribunal is in force at present. In the circumstances we are unable to see how any order could be passed that would keep their refund claim alive but yet dispose of this appeal.
6. A doubt was felt whether, when the matter was sent down by the Appellate Collector to the Assistant Collector on remand, it was open to the Assistant Collector to ignore the finding recorded by the Appellate Collector and come to a contrary conclusion, though purported to be based on their decisions of this Tribunal that had been rendered subsequent to the disposal of the appeal by the Appellate Collector. However, it appears to us that in the circumstances of this case it would not be necessary to go into that issue. This is for the reason that irrespective of whether the Assistant Collector was entitled to do so or not, the question will now have to be considered with reference to the fact that the entire matter is now before this Tribunal. The question, therefore, to be considered would be whether this Tribunal is bound to follow the finding recorded by the Appellate Collector in the earlier stages.
7. This question, in precisely the same terms, though in connection with civil proceedings, was the subject matter of consideration by the Supreme Court in the case of Jasraj Indersingh v. Hemraj Multanchand (AIR 1977 SC 1011). In para 13 the Supreme Court stated:
"The surviving question before us is whether it was in order for the trial Court to have investigated the accounts in the two shops together as if they were transactions between the same two persons or whether the remand order of the High Court at the first round had fettered the trial Court's hands in doing justice in this comprehensive way."
8. After discussing this matter in that paragraph the Supreme Court summarises the legal position in paragraph 14 as follows:
"Be that as it may, in an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it. This is the correct view of the law, although Shri Phadke controverted it, without reliance on any authority. Nor did Shri S.T. Desai, who asserted this proposition, which we regard as correct, cite any precedent of this Court in support. However, it transpires that in Lonankutty v. Thomman, (1976) 3 SCC 528 = (AIR 1976 SC 1645) this proposition has been affirmed. Viewed simplistically, the remand order by the High Court is a finding in an intermediate stage of the same litigation. When it came to the trial Court and escalated to the High Court, it remained the same litigation. The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject-matter is available for adjudication before us. If, on any other principle of finality statutorily conferred or on account of res judicata attracted by a decision in an allied litigation the matter is concluded, we too are bound in the Supreme Court. Otherwise, the whole list for the first time comes to this Court and the High Court's finding at an intermediate stage does not prevent examination of the position of law by this Court. Intermediate stages of the litigation and orders passed at those stages have a provisional finality. After discussing various aspects of the matter, Chandrachud J., speaking for the Court in Lonankutty observed: "The circumstance that the remanding judgement of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgement." The contention barred before the High Court is still available to be canvassed before this Court when it seeks to pronounce finally on the entirety of the suit."
9. Thus the Supreme Court held that when, in the course of the same proceedings, the matter comes up before an authority superior to the Appellate authority which passed the order of remand, the findings contained in the order of the remand would not be binding on the said superior authority which is entitled to go into the entire matter afresh without being shackled by the findings of the lower appellate authority as recorded in the order of remand. It, therefore, follows that in the present instance this Tribunal, in considering the entire issue, is entitled to go into the whole matter afresh and would not be bound by the opinion of the appellate Collector as recorded in the remand order. We have already seen that this Tribunal has held, in the case of these very appellants themselves, against them on the question of classification and liability for payment of duty. The said decision is binding on us, unless set aside by the Supreme Court.
10. Therefore, respectfully following the said decision we hold that the refund claim was rightly rejected by the lower authorities. We have, therefore, to necessarily dismiss this appeal. If the appellants wish to keep their refund claim alive till the Supreme Court disposes of their earlier appeal they will have to file an appeal against this order also to keep this refund claim alive.
11. This appeal is dismissed.