important point
The matter once decided by Supreme Court cannot be reopened on misapprehension of the tests laid down in another judgment.

JUDGMENT

Dr. ARIJIT PASAYAT, J. —

1.Leave granted.

2.Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court allowing the writ petition filed by the respondent. Challenge in the writ petition was to the show cause notice dated 29th April, 2005 issued by the Commissioner of Customs and Central Excise, Nagpur (hereinafter referred to as the ‘Commissioner’) on the ground that the Commissioner was seeking to re-open and re-litigate the issues which have been finally concluded by the decision of the High Court and this Court in favour of the writ petitioner and, therefore, the said show cause notice was without jurisdiction and had been issued in arbitrary exercise of power and that it is an abuse of process of law.

3.The petition was resisted on the ground that at the stage of show cause notice there should not be any inference. In fact the notice was issued pursuant to the liberty given by this Court in C.A.Nos. 7896-97/2003 disposed of by a three-Judge Bench by order dated December 7, 2004. The High Court accepted the position that normally the High Court should not interfere at the show cause notice stage. But in view of the factual scenario the Court entertained the writ petition and decided in favour of the respondent.

4.Background facts in a nutshell are as follows :

5.The respondent is a manufacturer of various products including Vicco Vajradanti and Vicco Turmeric which are stated to be ayurvedic medicines. A show cause notice dated 8th November, 1976 was issued requiring the respondent to satisfy as to why the said products should not be classified as “cosmetics” and not “ayurvedic medicines”. This show cause notice is hereinafter referred to as the “Ist SCN”. After hearing the respondent, the Commissioner under order, dated 4th June, 1977 classified the said products as “cosmetics”. The same was challenged by the respondent by way of Civil Suit No.143 of 1978 in the Court of Civil Judge, Senior Division, Thane, which came to be decreed in favour of the respondent holding that the said products were “ayurvedic medicines”, and therefore, cannot be classified as “cosmetics”. The appellants carried the matter in an appeal by filing First Appeal No.613 of 1982 before the High Court without any success as the same was dismissed on 27th April, 1988 holding that the products were “Ayurvedic medicines”. The Special Leave Petition preferred by the appellants being SLP No.1918 of 1989 was dismissed on 6th September, 1990. Simultaneously, the respondent had also filed the Special Leave Petition No.14082 of 1988 which came to be disposed of by an order dated 19th April, 1993, while affirming the judgment of this Court with a rider that the claim for refund of the amounts already paid, would be subject to ascertaining whether the amounts were passed on to the purchasers or not, and that the consequential relief shall be subject to the provisions of section 11B of the Central Excise and Salt Act, 1944 (in short the ‘Act’) as amended by Act 40/1991. On 28th February, 1986, Central Excise Tariff Act, 1985 (in short ‘Tariff Act’) was introduced, to be effective from Ist March, 1986. Under the Old Tariff Act, the ayurvedic medicines fell under the Notification No.234 of 1982, the products being listed at Sl. No.21. In term of the Tariff Act, the product was sought to be classified by the respondent under Chapter 30 sub-heading 3003.30 and the same was approved by Assistant Commissioner, Nagpur, by his order dated 6th October, 1986. Pursuant to the direction by the Commissioner, a show cause notice dated 3rd July, 1987 was issued requiring the respondent to show cause as to why the products should not be classified as cosmetics falling under Chapter 33. This was the second Show Cause Notice in relation to the same products, and hereinafter is referred to as the “2nd SCN”. After the reply being filed to the 2nd SCN, the same was recalled under the order dated 21st June, 1989. The matter was, however, carried i