Appellate Tribunal–Judicial Discipline-Precedent- Tribunal bound to follow decision of Supreme Court in preference to decision of Tribunal which was not challenged: CESTAT:

The assessee manufactured H.T. circuit breakers of various types and discharged payment of duty at 5%, in terms of Notification No.53/1993/CE, dated 28th February, 1993, classifying the goods under a particular Heading 8535. The Commissioner confirmed the demand of duty on the ground that the goods were classifiable under Heading 8537 and also imposed penalty. The assessee challenged the said order before CESTAT. By an order dated 31st May, 2002, the Tribunal held that the notification was applicable from date of publication and there was no deliberate suppression or misstatement of facts with an intent to evade payment of duty and consequently, the extended period of limitation under the proviso to section 11A(1) of the Central Excise Act, 1944 was not available and remanded the matter for redetermination of classification and to restrict the demand of duty to six months only. This order of the Tribunal was not challenged. The Commissioner thereafter passed a final order and held that the circuit breakers with control panels were classifiable under Heading 8537 of the Central Excise Tariff Act, 1985 in terms of the Board’s Circular No. 32/8/94-CX-4, dated 14th July, 1994, that the circular was applicable prospectively and confirmed the demand of duty for the period from 14th July, 1994 to 31st July, 1994. On appeal by the Department, the Appellate Tribunal held that the Department’s prayer for confirmation of entire duties invoking the extended period could not be accepted and remanded the matter to the Commissioner for quantification of duty for a period of six months on the reason that in the earlier order, the Tribunal had held that the demand be restricted to six months’ period only and that the order had not been appealed against. On appeal by the assessee, the High Court held, allowing the appeal, that the issue involved was covered by the decision of the Supreme Court and consequently, the order passed by the Tribunal without considering the decision of the Supreme Court was not correct. Merely because the assessee had not challenged the earlier order of the Tribunal or the Commissioner, it could not be taken as a precedent when already, on the very same issue, the Supreme Court decided in favour of the assessee. The Tribunal was bound to follow the decision of the Supreme Court in preference to the decision of the Tribunal, though such decision had become final in so far as the assessee was concerned.