- (1.) Mr. Chatterjee, learned senior counsel appearing for the respondent, takes the following points to oppose admission of this appeal: (i) According to the records as narrated by the tribunal in its impugned order, money was collected by the respondent from its customers but in the relevant documents like invoice bills etc. raised by them, it was not stated that any particular sum was collected on account of central excise. (ii) A tribunal-decision made on 17th September, 2007 in Mayfair Polymers Private Limited versus Commissioner of Central Excise, Ahmedabad said that if collection was made in the above manner, section 11D of the Central Excise Act, 1944, as it stood at the material point of time, was not attracted. (iii) According to the responses dated 11th May, 2017 and 6th November, 2019 of the RTI authorities, which are taken on record, to the query of the respondent, the above decision of the tribunal was accepted by the department. (iv) The Supreme Court decision in Boving Fouress Ltd. versus Commissioner of Central Excise, Chennai, reported in 2006(202) E.L.T 389 (S.C) laid down the following law: "11. This Court in a catena of decisions has held that where the department accepts the principle laid down by the Tribunal in one case and let it become final, then the department is not entitled to raise the same point in other cases. The department cannot pick and choose. [See: The decisions of this Court in Union of India & others v. Kaumudini Narayan Dalal and Another - (2001) 10 SCC 231; Collector of Central Excise, Pune v. Tata Engineering and Locomotives Co. Ltd .- 2003(158) E.L.T. 130 (S.C); Birla Corporation Ltd. v. Commissioner of Central Excise - 2005(186) E.L.T. 266 (S.C); and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur - 2006(195) E.L.T. 142 (S.C). It has been held in all these cases that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the Revenue, the Revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd. (supra), this Court observed as follows: "In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. [2001(130) E.L.T. 193] cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assesses in a quandary"."
(2.) Mr. Maity appearing for the revenue does not admit any of the factual contentions. He makes a very simple argument that the respondent has collected excise duty on exempted goods and that it is liable to remit the same to the Central Government under section 11D, as it stood at the material point of time.
(3.) We are of the opinion that on these submissions, it is difficult to throw out the appeal at the admission stage. We admit the appeal to be heard on questions which are based on the above arguments of Mr. Chatterjee and Mr. Maity enumerated above.;