Whether Commissioner (Appeals) can take a view inconsistent with that of his predecessors?

PJ/Case Laws/2012-13/1300

CASE: M/S THE SIRPUR PAPER MILLS LTD V/S COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, HYDERABAD-I COMMISSIONERATE HYDERABAD

CITATION: 2012-TIOL-1504-CESTAT-BANG

BRIEF FACTS: The appellant has filed two sets of application, one for seeking stay of operation of the impugned order and the other for out-of-turn disposal of the appeals. The present appeal is filed as the Commissioner (Appeals) rejected certain refund claims on the ground of unjust enrichment without valid reason. It is submitted that several orders passed in favour of the appellant by his predecessors in office in respect of similar refund claims were also not considered.

APPELLANT'S CONTENTION: It was submitted by the learned counsel thatrevenue has rejected certain refund claims on the ground of unjust enrichment without valid reason. It was submitted that several orders passed in favour of the party by his predecessors’ in-office in respect of similar refund claims were cited before the learned Commissioner (Appeals) but ignored by him. Further, it was also submitted that some of the cited orders-in-appeal were challenged by the department before the Tribunal but dismissed on merits.

It was further submitted by the learned counsel that none of the above orders of this Tribunal has been stayed by the competent appellate court and therefore those orders are liable to be followed by the departmental authorities. In this connection, it was further submitted that the original authority is bent on following the impugned order to reject the pending refund claims filed by the assessee. In this connection, reference is made to order-in-order No.17/2011 dt.9.1.2012 passed by the Deputy Commissioner of Central Excise crediting the amount to Consumer Welfare Fund. In this order of the Deputy Commissioner, he followed the appellate Commissioner's order in-appeal dated 23.12.2011 which is the order impugned in the present appeals. In the aforesaid circumstances, it is prayed that the operation of the impugned order be stayed and the appeals be listed out of turn.

The learned counsel for the appellant also argued that the Tribunal’s orders, unless stayed by the appellate court, have full precedent value and the same are binding on the departmental authorities. In this connection, reliance was placed on Supreme Court’s decision in the case of Union of India vs Kamlakshi Finance Corporation Ltd [1991 (55) ELT 433 (SC)]

RESPONDENT'S CONTENTION: The learned Deputy Commissioner (AR) reiterates the findings and observations of the learned Commissioner (Appeals) and particularly points out that the Tribunal's Final order No. 934 & 935/2009 dt. 30.4.2009 has been appealed against and the appeal is pending before the Andhra Pradesh High Court. In this scenario, the issue cannot be said to have attained finality and therefore the Tribunal's orders in favour of the assessee should not be followed as a precedent.

REASONING OF JUDGEMENT: There is a valid point in the submissions of the learned counsel. It is not in dispute that the final orders passed by this Tribunal on similar sets of facts are all in favour of the assessee. Again it is not in dispute that none of these orders was stayed by the appellate court. If that be so, the Tribunal's decision is binding on the departmental authorities and they cannot adhere to the view taken by the Commissioner (Appeals) in the impugned order, regardless of the overriding view of the Tribunal. A basic tenet of judicial discipline is involved in this aspect of the case. The Hon'ble Supreme Court's ruling in Kamlakshi Finance Corporation Ltd. case (supra) underlined this basic principle. It is disturbing that the learned Commissioner (Appeals) took a view inconsistent with the view expressed by himself in earlier similar cases of the assessee. No wonder, he refused to follow the earlier decisions in favour of the assessee rendered by his predecessors-in-office. Such inconsistencies are also extraneous to judicial discipline.
In view of the above findings, the stay application of the appellant is allowed. But, the appeal cannot be disposed off at this stage in as much as the Hon’ble High Court is sitting in judgment over one of the orders passed by this Tribunal. This Tribunal should wait for its outcome.

DECISION: The stay applications stand allowed.

Comment:The analogy drawn from this case is that Judicial Discipline is required to be followed by the appellate authorities. Judicial Discipline means that view taken by the predecessors in office is required to be followed and the decisions of the higher authorities are binding on the lower authorities.

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PJ/Case Laws/2012-13/1300

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