The principle established by the court is that when the department accepts a principle laid down in a previous case and lets it become final, it cannot raise the same point in other cases, and cannot pick and choose which principles to accept.

JUDGMENT :

The assessee-appellant has filed this appeal against Final Order Nos. 1292-1294/2004, dated 27th July, 2004 passed by the Customs, Excise & Service Tax Appellate Tribunal, Bangalore (for short "the Tribunal") in Appeal Nos. E/1925/1999, E/14/2001 and E/1060/2003 whereby the Tribunal allowed the appeal filed by the Revenue and set aside the order passed by the Appellate Commissioner and remitted the case back to the appellate authority for redecision in the light of the observations made in the impugned order.

2. The assessee, a public limited company registered under the Companies Act, 1956, is engaged in the business of manufacture of turbines and parts of turbines which are classifiable under Chapter Headings 8410.10 and 8410.90 of the Schedule to the Central Excise Tariff Act, 1985 [for short "the Tariff Act"]. The assessee-company is located at Hoskote in Bangalore. The assessee was served with a notice dated 25th January, 1999 proposing to deny the benefit of exemption under Notification No. 205/88-C.E. and subsequent Notification applicable to the clearance of the turbines manufactured by it which were cleared in completely knocked down (CKD) and semi-knocked down (SKD) conditions.

3. The assessee was served with two other show cause notices dated 27th September, 1999 and 1st of March, 2000. The first show cause notice was confirmed by the Commissioner on merits and it was held that the assessee was not entitled to the benefit under the exemption Notification No. 205/88-C.E. and subsequent Notification Nos. 5/98-C.E. and 5/99-C.E., but, on limitation, the demand was quashed. The total duty demand was restricted to Rs. 17,400/- for a period of six months by the Commissioner with an equivalent penalty.

4. Insofar as the subsequent notices are concerned, the authority-in-original confirmed the demand, aggrieved against which the assessee filed an appeal before the Commissioner (Appeals) resulting in the order under appeal. In the said order the first appellate authority granted exemption to the assessee under Notification No. 5/99-C.E. after setting aside the demand.

5. Being aggrieved, the Revenue filed two sets of appeals - one against the order passed by the Commissioner on limitation in the first show cause notice and the second against the order passed by the Commissioner (Appeals) granting benefit of exemption under Notification No. 5/99-C.E. in the second set of show cause notices.

6. The Tribunal by the impugned order has accepted the Revenue's appeals and set aside the orders passed by the Commissioner in both the sets of appeals and remitted them back to the Commissioner for a fresh decision in the light of the observation made in the order.

7. During the course of arguments before the Tribunal, learned Counsel appearing for the assessee had placed reliance upon an earlier decision of the Tribunal in Sulzer Flovel Hydro Ltd. v. Commissioner of Central Excise, Delhi-II [2004 (176) E.L.T. 195 (Tri-Del.)]. Sulzer Flovel Hydro Ltd. is also in the business of manufacture of turbines and parts of turbines. The said case was similar to the case in hand. In Sulzer Flovel Hydro Ltd., the benefit of exemption under Notification No. 5/99-C.E. was granted to the assessee. Tribunal in the present case has not disputed the principle laid down in the Sulzer's case (supra) but held that the decision in the Sulzer's case (supra) was distinguishable as in the said case the goods had been cleared in knocked down condition whereas in the present case the assessee had failed to establish that they had cleared the turbines in CKD/SKD condition.

8. Counsel for the assessee has produced a copy of the judgment in Sulzer's case (supra). With the assistance of the learned Counsel, we have gone through the said decision and find that the facts in that case are identical to the facts of the present case and the principle laid down in that case would be squarely applicable to the present case as well.

9. The principle laid down by the Tribun