Continued from Part 1
15. Thus Tribunal find that the demand made in respect of receipts from M/s UPPCL and M/s Krishi Utpadan Mandi Samiti are barred by limitation, as extended period of limitation as per proviso to Section 73 (1) could not have been invoked for making these demands.
16. From the impugned order it do not transpire that appellant has ever challenged the demand of Rs 24, 528/- for the period 2014-15 made towards “Material Cost for provisions of Taxable Services (Amount claimed as supply of goods without any evidence.)” before the first appellate authority. As I do not find even whisper about the same in the impugned order, in view of Tribunal, appellant cannot challenge the said demand in this appeal.
17. M/s JSL Ltd. 2011 (272) ELT 120 (Tri.-Del)
In the case of M/s JSL Ltd. 2011 (272) ELT 120 (Tri.-Del) following has been observed:-
“12. The Bombay High Court in the case of Smithkline Beecham (supra) while dealing with the scope of Order II Rule 1 and 2 along with Section 11 of CPC has observed thus :
“It is clear from the provisions of Order II, Rule 1 of the Civil Procedure Code that it obliges a plaintiff to frame his suit in such a manner that a final decision can be rendered by the Court in that suit on the subject in dispute. It goes without saying that if a particular ground is not within the knowledge of the plaintiff, though it is on the same subject, when the suit is filed, no fault can be found with the plaintiff, therefore, phrase „as far as practicable‟ has been used by Order II, Rule 1 of the Civil Procedure Code. But it can definitely be said that, the provisions of Order II, Rule 1 of the Civil Procedure Code oblige a plaintiff to raise in his suit all the grounds available to him, on the subject in dispute, which he was capable of raising when the suit was filed. It is further clear from the provisions of Order II, Rule 1 of the Civil Procedure Code that this duty has been cast on the plaintiff to prevent further litigation on that subject, between the parties. In my opinion, with the same object the provisions of Section 11, explanation IV of the Civil Procedure Code have been enacted. Therefore, in my opinion, the provisions of Section 11, Explanation IV and Order II, Rule 1 are in furtherance of the same scheme i.e. to prevent repeated litigation between the same parties on the same subject. It is further to be noted here that Rule 1 of Order II uses the phrase „subject in dispute‟ and not the phrase „cause of action‟ which is used in Rule 2 of Order II of the Civil Procedure Code, similarly Section 11 of the Civil Procedure Code uses the phrase „matter which might or ought to have been a ground of attack‟. It thus appears that, though there are several causes of action available to a plaintiff, if all the cause of action are relating to the subject in dispute, then Order II, Rule 1 obliges the plaintiff to include all those causes of action in one suit, if it is practicable for the plaintiff to do so. Now, if a plaintiff disregards the mandate of Order II, Rule 1 and institutes a suit leaving out some grounds available to him on the subject in dispute and subsequently institutes a suit on the grounds which were left out from the earlier suit, then in case the earlier suit has already been finally decided then Section 11 of the Civil Procedure Code will bar the subsequently instituted suit, but in case the previously instituted suit is still pending then, in my opinion, the provisions of Section 9 of the Civil Procedure Code would bar such a suit. Institution of a suit contrary to the scheme of the Civil Procedure Code, in my opinion, has to be said to be barred by necessary implication. In my opinion, it cannot be said that the Civil Courts have the jurisdiction to try the suits, institution of which is contrary to the scheme of the Civil Procedure Code, which discourages repeated litigation on the same subject, between the same parties.”
13. The Apex Court in Nawab Hussain case while dealing with the scope of principles of constructive res judicata observed thus :-
“…………….The question which specifically arose for consideration was whether the principle of constructive res judicata was applicable to writ petitions of that kind. While observing, that the rule of constructive res judicata was „in a sense a somewhat technical or artificial rule prescribed by the CPC‟, this Court declared the law in the following terms. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another an urge new grounds every time; and that plainly is consistent with considerations of public policy to which we have just referred.”
Further, the Apex Court reiterated its earlier decision in the Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara reported in AIR 1964 SC 1013 while observing thus :-
“As a result of the above discussion, we are of opinion that the provisions of Section 11 , C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject manner. The nature of the former proceeding is immaterial.”
14. Taking into consideration, the above rulings and the facts and circumstances of the case in hand and the order passed by the Hon‟ble Punjab & Haryana High Court, the respondents are justified in contending that it is not open for the appellants to challenge the final finding by way of appeal and only rennedy available at this stage to the appellants is to approach Designated Authority in review proceedings under Rule 23 of Anti-Dumping Rules in terms of the order of the Hon‟ble High Court.”
In the case of CCE Vs M/s Haryana Steel & Alloys Ltd. 2011 (271) ELT 108 (Tri.-Del.) this Tribunal has held as follows:-
“7.As far as the appeal by the assessee is concerned, the question of Tribunal going into the merits of the case at the instance of the assessee does not arise at all. The liability arising on merits as confirmed by the adjudicating authority was accepted by the assessee and though initially sought to be challenged it was specifically given up in the course of hearing of the appeal before the lower appellate authority and the same has been clearly recorded by the Commissioner (Appeals) in the impugned order. Being so, it is too late for the assessee to make any grievance about confirmation of demand by the adjudicating authority. Besides, once it is clear that the subject matter of dispute before the Commissioner (Appeals) was confined to the issue of penalty only, it is not permissible to raise new issue relating to merits of the case in the appeal arising from the order passed by the Commissioner (Appeals) confining the adjudication to the issue of penalty only. The order passed by the adjudicating authority attained finality once the challenge to the same was specifically given up by the assessee. Hence the appeal by the assessee is liable to be dismissed in limine and is accordingly hereby dismissed.”
Continue to Part 5
This is not a legal advice. This article is based on the judgment and order of the Court.