JUDGMENT K.S. Jhaveri, J. - By way of this petition, the petitioner has challenged the judgment and order of the Tribunal [2016 (343) E.L.T. 1084 (Tribunal)] whereby the Tribunal has allowed the appeal preferred by the Department reversing the view taken by the Deputy Commissioner and Commissioner (Appeals) after remand by the High Court vide order passed in 2005. 2. The facts of the case are that the petitioner is a manufacturing unit of iron and steel products classifiable under Chapter-72 of the Central Excise Tariff Act. In the first round of litigation in the year 1998 on 29th November, 2001, this Court while admitting the matter observed as under :- "Mr. Gupta submits that issue involved in this petition is covered by the decision of Supreme Court in the case of Eicher Motors Ltd. and Ors. vs. Union of India and Ors., 1999 (2) SCC 361 wherein the Lordships held that provisions in Rule 57F(4A) for lapsing of credit lying unutilized on 16-3-1995 that cannot be applied to the goods manufactured prior to 16-3-1995. A copy of the judgment be given to the Learned Counsel for the respondents. List this case for final hearing on 13-12-2001." 3. After a period of 4 years on 7-7-2005, the Division Bench allowed the matter with the following order :- "The facts are not in dispute that petitioner has purchased the capital goods in question on 30-7-1997 and excise duty of Rs. 20 lacs was paid on that capital goods, which is in the form of machinery. At that time the provision was that any excise duty paid on the capital goods may be adjusted against the excise duty liability on the goods, manufactured by the petitioner. On 1-8-1997, a notification has been issued by the Central Government directing that if any excise duty is paid on the capital goods and yet to be adjusted against the liability of excise duty, that lapses, assessee cannot take the advantage of the excise duty paid on the capital goods i.e. manufacturing machinery. Mr. Gupta, Learned Counsel for the appellant brought to our notice that similar issue has been considered by their Lordships in the case of Eicher Motors Ltd. and Anr. vs. U.O.I. and Ors. [(1999) 2 Supreme Court Cases 361] wherein their Lordships have given some directions how to ascertain the excise liability duty payable by the assessee in such cases. Mr. Gupta, Learned Counsel for the appellant brought to our notice that similar issue has been considered by their Lordships in the case of Eicher Motors Ltd. and Anr. vs. U.O.I. and Ors. [(1999) 2 Supreme Court Cases 361] wherein their Lordships have given some directions how to ascertain the excise liability duty payable by the assessee in such cases. Learned Counsel further submit that direction can be given to the Assistant Commissioner to pass a fresh excise duty liability order in the light of the directions given by their Lordships in the case of Eicher Motors Ltd. and Anr. vs. U.O.I. and Ors. (supra) Learned Counsel for the respondent has not controverted this fact that identical issue has been considered by their Lordships in the case of Eicher Motors Ltd. and Anr. vs. U.O.I. and Ors. (supra). Considering the submissions, we remit the matter back to the Assistant Commissioner with the direction to pass a fresh order regarding excise duty liability in the light of the direction given by their Lordships in the case of Eicher Motors Ltd. and Anr. vs. U.O.I. and Ors. (supra)." 4. The Department has not challenged this order and accepted the same and hearing proceeded further and Assistant Commissioner believing that the judgment of the Supreme Court is applicable, has allowed the original application and the notice which has been issued against the present petitioner was dropped and credit was allowed by order dated 10-5-2006 against which appeal was preferred by the Department which also came to be dismissed by order dated 28th February, 2007 relying upon the decision of the Supreme Court which has been followed by the Division Bench of this Court observing as under :- 7. I have carefully gone through the case records, appeal memorandum, and evidences available on records. I observe that, the Impugned Order has arisen in compliance of Hon'ble High Court order in DB CWP No. 1413/1998 dated 26-72005, wherein it has clearly been pointed out that "Learned Counsel for the respondent has not controverted this fact that identical issue has been considered by their Lordship in the case of Eicher Motors Ltd. and Anr. vs. UOI and Ors (supra)". In view of this, I find that, similarity of the issue in the instant case and Eicher Motors Ltd. and Anr. v. UOI and Ors. vs. UOI and Ors (supra)". In view of this, I find that, similarity of the issue in the instant case and Eicher Motors Ltd. and Anr. v. UOI and Ors. has not been disputed before the Hon'ble High Court by the appellants, therefore, following the principles of res judicata, I hold that, similarity of the issue has reached to finality and points raised by the appellant to distinguish the instant case from the Eicher Motor's case are not maintainable. 8. I also find that, Hon'ble High Court order in DB CWP No. 1413/1998, dated 26-72005, has directed the Adjudicating Authority "to pass a fresh order regarding excise duty/liability in the light of the direction given by their Lordship in the case of Eicher Motors Ltd. and Anr. v. UOI and Ors. [ (1999) 2 SCC 361 ]. I also find that, in view of the above judgment, the Adjudicating Authority has rightly concluded that "the Apex Court have laid down law that vested right, which have already accrued to the assessee cannot be taken away", following this, the Adjudicating Authority has concluded that, a vested right had accrued to them on the date when they paid duty on capital goods and that right would continue until those goods existed or are used/disposed as per the provisions of law, thus amendments made in erstwhile rule 57S cannot be applied to capital goods purchased and installed prior to 1-8-1997 on which duty had been paid and credit thereto was taken for the purposes of manufacture of further goods. On the contrary the appellant has contended that, in view of various facts, the instant case was not similar to the Eicher Motors case. In view of the principles of res judicata, I do not agree with the appellant and find that the appellant has not disputed the similarity of the instant case with the Eicher Motor's case before Hon'ble High Court therefore the same has attained finality, and cannot be appealed against. 5. The Additional Commissioner while passing the order dated 5th June, 2007 while reiterating the grounds of appeal averred the same as under :- 2. 5. The Additional Commissioner while passing the order dated 5th June, 2007 while reiterating the grounds of appeal averred the same as under :- 2. The assessee filed Civil Writ petition before the Hon'ble Rajasthan High Court for getting quashed the Notification No. 33/1997-C.E. (N.T.) and 34/1997-C.E. (N.T.), both dated 1-8-1997 and in the petition it was nowhere claimed that this petition involves the issue similar to the case of M/s. Eicher Motor's Ltd., (supra) decided by the Hon'ble Apex Court. The Counsel of the petitioner Shri Gupta, brought to the notice of the bench only at the time of hearing that similar issue has been considered by their Lordships in the case of M/s Eicher Motor's and the Government Counsel at that stage could not controvert the same as he was not aware about the issue involved in the Eicher Motor's case instantly. Even the Hon'ble High Court was not sure about the similarity of the issue in both the cases otherwise the bench itself could have decided the case. Whereas the Hon'ble Bench had remitted the case to the Assistant Commissioner for decision. Therefore, it was the duty of the Assistant Commissioner to decide the matter following the provisions of law as well as the precedents in this regard. By not honouring the Notification issued by the Government under the authority of law, both authorities i.e adjudicating authority as well as the appellate authority have erred and decision taken by them is illegal and unsustainable in the eyes of law. 3. That the application of principle of "res judicata" by the Commissioner (Appeals) in view of the averments made by the Hon'ble Court that "Learned Counsel for the respondent has not controverted this facts that identical issue has been considered by their lordships in the case of M/s. Eicher Motors Ltd." is totally wrong as the Hon'ble High Court did not decide any law point and simple directions were given to the adjudicating authority to pass orders in the light of the directions given in the case of M/s. Eicher Motors. Therefore, both the adjudicating authority and the appellate authority have wrongly applied the principle of res judicata on the face of Board's Notification No. 33/1997-C.E. (N.T.) and 34/1997-C.E. (N.T.), both dated 1-8-1997 which were in force and were to be treated as part and parcel of the statute as these were never quashed and/or declared ultra vires by the competent court till date. Thus, both the orders i.e. Order-in-Original passed by the Deputy Commissioner and the Order-in-Appeal passed by the Commissioner (Appeals) are illegal and deserve to be quashed. 6. On the basis of opinion given by two Commissioners whose name and Designation reads as under :- (B.S.V. Murthy) Commissioner Central Excise , Commissionerate Jaipur-II (R.K. Singh) Commissioner Central Excise Commissionerate, Jaipur-I 7. Counsel for the petitioner relied on the following decisions :- (1) In Collector of Central Excise, Pune Etc. Etc. v. Dai Ichi Karkaria Ltd. Etc. Etc. - 1999 (112) E.L.T. 353 (S.C.), it has been held as under :- 17. The Central Excise Rules, in Chapter VAA, deal with "The credit of duty paid on excisable goods used as inputs". The relevant Rules are Rule 57A to Rule 57J. Subrule (1) of Rule 57A reads thus : (1) The provisions of this section shall apply to such finished excisable goods (hereinafter referred to as the "final products"), as the Central Government may, by notification in the Official Gazette, specify in this behalf, for the purpose of allowing credit of any duty of excise or the additional duty under Section 3 of the Customs Tariff Act, 1975 (51 of 1975), as may be specified in the said notification (hereinafter referred to as the "specified duty") paid on the goods used in or in relation to the manufacture of the said final products [whether directly or indirectly and whether contained in the final product or not] (hereinafter referred to as the 'input') and for utilising the credit so allowed towards payment of duty of excise leviable on the final products, whether under the Act or under any other Act, as may be specified in the said notification, subject to the provisions of this section and the conditions and restrictions that may be specified in the notification : Provided that the Central Government may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted. 18. 18. Rule 57C states that no credit of duty paid on a final product may be allowed if the final product is exempt from the whole of the excise duty leviable thereon or is chargeable to a nil rate of duty. Rule 57D says that the credit of duty allowed in respect of any inputs shall not be denied or varied on the ground that part of the inputs is contained in any waste, refuse, or by-product arising from the manufacture of the final product or on the ground that any intermediate product has come into existence during the course of the production of the final product. Rule 57E says that if the duty paid on any inputs on which credit has been allowed is varied subsequently, the credit allowed shall be varied accordingly by adjustment of the credit account or, if adjustment is not possible for any reason, by cash recovery from or, as the case may be, by refund to the manufacturer availing of the credit. Rule 57F(1) reads thus : The inputs in respect of which a credit of duty has been allowed under Rule 57A (1) may be used in, or in relation to, the manufacture of final products for which such inputs have been brought into the factory; or (ii) shall be removed, after intimating the Assistant Commissioner of Central Excise having jurisdiction over factory and obtaining a dated acknowledgement of the same from the factory for home consumption or for export under bond : Provided that where the inputs are removed from the factory for home consumption on payment of duty of excise, such duty of excise shall be the amount of credit that has been availed in respect of such inputs under Rule 57A. Rule 57G provides that the manufacturer intending to take credit of duty paid on inputs must file a declaration with the concerned excise officer indicating what the final products are that are manufactured in its factory and the inputs intended to be used therein and obtain an acknowledgement thereof. The manufacturer, having filed the declaration and obtained the acknowledgement, can take credit for the duty on the inputs received by him. Rule 57-I provides for the recovery of credit wrongly availed of or utilised in an irregular manner. The manufacturer, having filed the declaration and obtained the acknowledgement, can take credit for the duty on the inputs received by him. Rule 57-I provides for the recovery of credit wrongly availed of or utilised in an irregular manner. The manufacturer is then required to show cause why he should not be disallowed such credit, or, if it has utilised it, why its value should not be recovered from him. After considering the reply, the concerned excise officer is empowered to make the appropriate order in such terms. 19. It is clear from these Rules, as we read them, that a manufacturer obtains credit for the excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgement thereof. It is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted that there is no co-relation of the raw material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available. 20. It is, therefore, that in the case of Eicher Motors Ltd. v. Union of India : 1999 ECR 7 (S.C.) this Court said that a credit under the Modvat scheme was as good as tax paid. (2) In Samtel India Ltd. v. Commissioner of Central Excise, Jaipur - 2003 (155) E.L.T. 14 (S.C.), it has been held as under : 8. The principles laid down in Eicher Motor's case (supra) are fully applicable, here. (2) In Samtel India Ltd. v. Commissioner of Central Excise, Jaipur - 2003 (155) E.L.T. 14 (S.C.), it has been held as under : 8. The principles laid down in Eicher Motor's case (supra) are fully applicable, here. It is however submitted that is no challenge to the validity of sub-rule (17). It is submitted that this Court cannot, therefore, strike down nor read down sub-rule (17). It is submitted that in the absence of such a challenge full effect has to be given to the wording of sub-rule (17). It is submitted that sub-rule (17) specifically provides that the credit would lapse and that credit shall not be allowed. We are unable to accept this submission. What was then sub-rule (4A) is now sub-rule (17) (a). sub-rule (17)(b) is identical to sub-rule (17)(a) except that it is in respect of a different final product. Once a validity of a provision is challenged and the validity is upheld by reading down that provision, then it is not necessary that in all subsequent proceedings the validity must again be challenged. It is sufficient if a party claims that the provision has to be read in the manner laid down by a judgment of this Court. In the light of the judgment of this Court in Eicher Motors case (supra), sub-rule (17) cannot apply to vested rights. Therefore to the extent that the goods have already been exported, prior to March, 1997, the assessee would be entitled to a refund. (3) In Eicher Motors Limited and Anr. v. Union of India and Ors. Etc. - 1999 (106) E.L.T. 3 (S.C.), it has been held as under : 5. Rule 57F(4A) was introduced into the Rules pursuant to Budget for 1995-96 providing for lapsing of credit lying unutilised on 16-3-1995 with a manufacturer of tractors falling under heading No. 8701 or motor vehicles falling under heading No. 8702 and 8704 or chassis of such tractors or such motor vehicles under Heading No. 8706. However, credit taken on inputs which were lying in the factory on 16-31995 either as parts or contained in finished products lying in stock on 16-3-1995 was allowed. Prior to 1995-96 Budget, central excise/additional duty of customs paid on inputs was allowed as credit for payment of excise duty on the final products, in the manufacture of which such inputs were used. Prior to 1995-96 Budget, central excise/additional duty of customs paid on inputs was allowed as credit for payment of excise duty on the final products, in the manufacture of which such inputs were used. The condition required for the same was that the credit of duty paid on inputs could have been used for discharge of duty/liability only in respect of those final products in the manufacture of which such inputs were used. Thus, it was claimed that there was a nexus between the inputs and the final products. In 1995-96 Budget Modvat scheme was liberalized/simplified and the credit earned on any input was allowed to be utilised for payment of duty on any final product manufactured within the same factory irrespective of whether such inputs were used in its manufacture or not. The experience showed that credit accrued on inputs is less than the duty liable to be paid on the final products and thus the credit of duty earned on inputs gets fully utilised and some amount has to be paid by the manufacturer by way of cash. Prior to 1995-96 Budget, the excise duty on inputs used in the manufacture of tractors, commercial vehicles varied from 15% to 25%, whereas the final products were attracted excise duty of 10% or 15% only. The value addition was also not of such a magnitude that the excise duty required to be paid on final products could have exceeded the total input credit allowed. Since the excess credit could not have been utilised for payment of the excise duty on any other product, the unutilised credit was getting accumulated. The stand of the assessees is that they have utilised the facility of paying excise duty on the inputs and carried the credit towards excise duty payable on the finished products. For the purpose of utilization of the credit all sensitive facts or necessary incidents thereto have taken place prior to 16-3-1995 or utilisation of the finished products prior to 16-3-1995. Thus, the assessees became entitled to take the credit of the input instantaneously once the input is received in the factory on the basis of the existing scheme. For the purpose of utilization of the credit all sensitive facts or necessary incidents thereto have taken place prior to 16-3-1995 or utilisation of the finished products prior to 16-3-1995. Thus, the assessees became entitled to take the credit of the input instantaneously once the input is received in the factory on the basis of the existing scheme. Now by application of Rule 57F(4A) credit attributable to inputs already used in the manufacture of the final products and the final products which have already been cleared from the factory alone is sought to be lapsed, that is, the amount that is sought to be lapsed relates to the inputs already used in the manufacture of the final products but the final products have already been cleared from the factory before 16-3-1995. Thus, the right to the credit has become absolute at any rate when the input is used in the manufacture of the final product. The basic postulate, that the scheme is merely being altered and, therefore, does not have any retrospective or retro-active effect, submitted on behalf of the State, does not appeal to us. As pointed out by us that when on the strength of the rules available certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily it follows that right, which had accrued to a party such as availability of a scheme, is affected and, in particular, it loses sight of the fact that provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It is on the basis of the earlier scheme necessarily the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said rule would result in affecting the rights of the assessees. 6. We may look at the matter from another angle. It is on the basis of the earlier scheme necessarily the taxes have to be adjusted and payment made complete. Any manner or mode of application of the said rule would result in affecting the rights of the assessees. 6. We may look at the matter from another angle. If on the inputs the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus, a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the rule cannot be applied to the goods manufactured prior to 16-3-1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods. 8. Counsel for the respondent has relied on the following decisions : (i) In Raymond Ltd. v. CCE and Cus., Nashik - 2015 (322) E.L.T. 469 (Bom.), it has been held as under : (59) Then, the reliance placed by Mr. Sridharan on the transitional provision and particularly Rule 57AG(1) can be of no assistance to him. Once we have said that the credit lying as on 1st April, 2000 in AED(T&TA) account cannot be utilised towards payment of AED(GSI) on final products and which is clear from a plain reading of the Rules, then, the transitional provision cannot be read otherwise. It will have to be read in consonance with the earlier rules and so read, there is no right flowing therefrom to claim such entitlement or availment. Once this conclusion is reached, then, the judgment of the Hon'ble Supreme Court of India in the case of Eicher Motors Ltd. v. Union of India reported in 1999 (106) E.L.T. 3 (S.C.) can be of no assistance. Once this conclusion is reached, then, the judgment of the Hon'ble Supreme Court of India in the case of Eicher Motors Ltd. v. Union of India reported in 1999 (106) E.L.T. 3 (S.C.) can be of no assistance. As has been pointed out to us that this judgment was rendered in the case of taking of credit by the manufacturer/assessee of duty paid inputs used in the manufacture of tractors falling under Heading No. 8701 or motor vehicles falling under Heading No. 8702 and 8704 or chassis of such tractors or such motor vehicles under Heading No. 8706. Prior to budget of 1995-96 the credit of BED was allowed to be used for payment of duty on the final products, in which the inputs were used. In 1995-96, the Modvat claim was liberalised/simplified and condition that credit of duty paid on the inputs could have been used for discharging duty liability only in respect of above final products was removed. The credit then can be utilised for J.V. Salunke, PACEXA. 101.102.103.2014. Judgment.doc payment of duty on any final product manufactured in that factory. That is how the subject Rule providing for lapsing of credit unutilised with the manufacturer of tractors was referred. The assessee contended that this amounts to taking away a vested right acquired by the manufacturer under the existing law and taking away such right by Rule 57F(4A) is beyond powers of the Central Government. It is in that context that the Revenue's stand was negatived by the Hon'ble Supreme Court. We cannot read the observations and conclusions of the Hon'ble Supreme Court de hors this factual position and controversy. Once we have arrived at a conclusion that there is no vested right created in the assessee/appellant before us, then, this judgment and equally the judgment in the case of Collector of Central Excise v. Dai Ichi Karkaria Ltd. reported in 1999 (112) E.L.T. 353 = 2016 (343) E.L.T. 1121 (Mad.) can be of no assistance. (ii) In Arun Smelters Ltd. v. Customs, Excise and Service Tax Appellate Tribunal, South Regional Bench and Ors., it has been held as under : 19. (ii) In Arun Smelters Ltd. v. Customs, Excise and Service Tax Appellate Tribunal, South Regional Bench and Ors., it has been held as under : 19. Placing reliance on the decision of the Hon'ble Apex Court in Hans Steel Rolling Mill v. Commissioner of Central Excise, Chandigarh : 2011 (265) E.L.T. 321 (S.C.) : (2011) 3 SCC 748 : LNIND 2011 S.C. 284, it is the further submission of the Learned Counsel for the respondent that the compounded levy scheme, introduced in the Central Excise Act, 1944, is a comprehensive scheme, wherein, Rule 96ZO of the Rules, applicable to the case on hand, stipulate the method, time and the manner of payment and it also contains provisions, relating to payment of interest and penalty, in the event of delay, in payment of duty. (iii) In Commissioner of Central Excise, Pondicherry v. Sharadha Castings (P) Ltd. - 2012 (277) E.L.T. 37 (Mad.), it has been held as under : 1. The appellants are engaged in the manufacture of Non-alloy steel falling under Chapter sub-heading 720690 of the First Schedule to the Central Excise Tariff Act, 1985. They had a stock of 1966.031 M.Ts. of inputs lying in stock and 69.54 M.Ts. of steel ingots contained in the finished products lying in stock as on 1-8-1997. With the introduction of Section 3A of the Central Excise Tariff Act, manufacturers like the respondents are to pay duty under the Compounded Levy Scheme. As per Notification No. 33 of 1997-C.E. (N.T.), dated 1-8-1997, the MODVAT credit available as on the 1st day of August 1997 shall lapse and it shall not be allowed to be utilized for payment of duty on excisable goods. A show cause notice was issued on 3-1-2000 by the Superintendent of Central Excise, Range-IV, Cuddalore, to recover the Modvat credit of Rs. 19,99,949/- taken on the inputs lying in stock and on the inputs contained in the finished goods lying in stock as on 11-8-1997. After considering the assessee's reply, the Assistant Commissioner of Central Excise, Cuddalore, confirmed the demand. As against that, the assessee went in appeal before the Commissioner (Appeals). 19,99,949/- taken on the inputs lying in stock and on the inputs contained in the finished goods lying in stock as on 11-8-1997. After considering the assessee's reply, the Assistant Commissioner of Central Excise, Cuddalore, confirmed the demand. As against that, the assessee went in appeal before the Commissioner (Appeals). The appellate authority, following : 2001 (138) E.L.T. 296 (Savitri Concast Pvt. Ltd. v. CCE, Jaipur) came to the conclusion that in view of Rule 57H(7) read with 57F(17)(c) and since the assessee had come under the Compounded Levy Scheme and since they had not opted for exemption from payment of duty, their case was covered by the decision cited supra and allowed the appeal. 2. The Department moved the Customs, Excise and Service Tax Appellate Tribunal, Chennai, which held that the issue no longer res integra. Against that, the present appeal has been filed by the Department on the following substantial question of law :- 1. Whether the Commissioner (Appeals) and Appellate Tribunal are correct in interpreting the Modvat Credit Rules vis-a-vis Section 3A of the Central Excise Act, 1944? and 2. Whether the credit of duty attributable to the inputs, after the introduction of Section 3A can be recovered under Rule 57-I of erstwhile Central Excise Rules, 1944 or not? Rule 57F(17)(c) of The Central Excise Rules, 1944 or not? Rule 57F(17)(c) of the Central Excise Rules, 1944 reads as follows : (b) ... (c) on the first day of August, 1997, with the manufacturer of ingots and billets of non-alloy steel falling under heading Nos. 7206.90 and 7207.90 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), and who is required to pay duty under Section 3A of the Central Excise Act, 1944 (1 of 1944), shall lapse and shall not be allowed to be utilized for payment of duty on any excisable goods, whether cleared for home consumption or for export, Rule 57H(7) refers to a manufacturer who opts for exemption from payment of whole of the duty and states that such manufacturer shall be required to pay an amount equivalent to the credit, if any, allowed to him in respect of the inputs lying in stock or used in any finished excisable goods lying in stock. It is not the case of the Department that the respondent is a manufacturer who opted for exemption from payment of whole of the duty. It is not the case of the Department that the respondent is a manufacturer who opted for exemption from payment of whole of the duty. In fact, the Tribunal in its order had observed that the assessee had come under the Compounded Levy Scheme with effect from 1-8-1997 and when they switched over to this, the credit lying unutilised, be in the inputs or in the final products, lapsed in terms of sub-rule (17) of Rule 57F of the Central Excise Rules, 1944. The Tribunal is, therefore, correct in its conclusions. We are unable to accept the objections raised by the appellant. In our opinion, the substantial questions of law do not arise for consideration in this appeal. Accordingly, the appeal is dismissed. (iv) Commissioner of Central Excise and Customs v. M/s. Venus Castings (P.) Ltd. - 2000 (117) E.L.T. 273 (S.C.) it has been held as under :- 11. The Learned Counsel for the respondent contended that the Rule 96ZO(3) is contrary to Section 34(4) of the Act and, therefore, should be held to be ultra vires or read the relevant rules in such a manner as to allow the procedure prescribed under the provisions of Section 34(4) to be followed. Section 34 of the Act provides for levy and collection of the tax arising under the Act in such manner and at such rate as may be prescribed by the Rules. Section 34 provides special procedure in respect of the power of the Central Government to charge excise duty on the basis of capacity of production in respect of notified goods. If such interpretation is not accepted, it is contended, that the levy of tax is in the nature of a license fee and not on production of goods at all. Schemes of composition are available in several other enactments including the Sales Tax Act and the Entertainment Tax [See : State of Kerala and Anr. v. Builders Association of India and Ors. : AIR 1997 SC 3640 . in this context, the Learned Counsel for the respondents referred to several decisions. However, in our opinion, all these decisions either arising under the Income Tax Act in relation to special mode of collection of tax or excise duty on timber dealers or other enactments have no relevance. : AIR 1997 SC 3640 . in this context, the Learned Counsel for the respondents referred to several decisions. However, in our opinion, all these decisions either arising under the Income Tax Act in relation to special mode of collection of tax or excise duty on timber dealers or other enactments have no relevance. What can be seen is that the charge under the Section is clearly on production of the goods but the measure of tax is dependent on either actual production of goods or on some other basis. The incidence of tax is, therefore, on the production of goods. It cannot be said that collection of tax based on the annual furnace capacity is not relatable to the production of goods and does not carry the purpose of the Act. In holding whether a relevant rule to be ultra vires it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto. If the entire enactment is read as a whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment. Therefore, it is made clear that the manufacturers, if they have availed of the procedure under Rule 96ZO(3) at their option, cannot claim the benefit of determination of production capacity under Section 34(4) of the Act which is specifically excluded. We find that the view taken by the Andhra Pradesh High Court in Sathavahana Steels and Alloys (P) Ltd. v. Government of India (supra) and the similar view expressed by the Division Bench of the Allahabad High Court in Civil Miscellaneous Writ Petition No. 1127 of 1999 Jalan Castings (P) Ltd. v. Commissioner of Central Excise and Ors. disposed of on February 28, 2000 is reasonable and correct. We overrule the view taken by the Allahabad High Court in Pravesh Castings (P) Ltd., Kanpur Nagar v. Commissioner of Central Excise, Allahabad and Anr. (supra). 12. On the reasoning adopted by us and bearing in mind that in taxation measures composition schemes are not unknown and when such scheme is availed of by the assessee it is not at all permissible for him to turn around and ask for regular assessment, we think, there is no substance in the contention urged on behalf of the respondents. 13. 13. There are a few peripheral submissions made on behalf of the respondents that in several cases the Commissioners have wrongly fixed the furnace capacity and that aspect has to be examined by the Tribunal in such cases. In these cases, therefore, we set aside the orders made by the Tribunal and direct the Tribunal to bring the orders in conformity with the view expressed by us and pass appropriate orders. (v) In Shree Synthetics Ltd. v. UOI and Ors., 1982 (10) E.L.T. 97 (M.P.), it has been held as under : 6. "The nature of excise duty has been considered by the Supreme Court in a number of cases. In R.C. Jail v. Union of India - AIR 1962 S.C. 1281 , the Supreme Court after referring to the decisions in, In re : Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 - AIR 1939 Federal Court 1., Province of Madras v. Boddu Paidanna and Sons - AIR 1942 Federal Court 33 and Governor-General in Council v. Province of Madras - AIR 1945 PC 98 observed : "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost." In a passage which was quoted with approval by the Supreme Court in Jail's case, Gwyer, C.J., in Boddu Paidanna's case said that although in theory there is nothing to prevent the Central Legislature from imposing a duty of excise on a commodity as soon as it comes into existence, but "a taxing authority will not ordinarily impose such a duty because it is much more convenient administratively to collect the duty (as in the case of most of the Indian Excise Acts) when the commodity leaves the factory for the first time." In Jail's case, the Supreme Court was dealing with Section 2 of the Coal Production Fund Ordinance, 1944 which imposes a cess as a duty of excise on all coal and coke despatched from collieries in India. By the rules framed under the Ordinance in case of consignments where the freight charges are not prepaid, the duty is recovered from the consignee along with the freight by the railway administration. It was held by the Supreme Court that the duty was in the nature of excise tax and that the machinery evolved under the rules for collection of the duty did not disturb the essence of the tax and, therefore, exigibility of the tax at the destination point in the hands of the consignee could not be legitimately questioned. In Shinde Brothers v. Dy. Commr, Raichur - AIR 1967 S.C. 1512 , the Supreme Court reiterated the characteristics of excise duty. It was pointed out that duty of excise is clearly related to production or manufacture of goods but it does not matter if the levy is made not at the moment of production or manufacture but at a later stage and that if the duty is collected from a retailer it would not necessarily cease to be an excise duty. It was pointed out that duty of excise is clearly related to production or manufacture of goods but it does not matter if the levy is made not at the moment of production or manufacture but at a later stage and that if the duty is collected from a retailer it would not necessarily cease to be an excise duty. These authorities clearly establish that although a duty of excise is a tax on manufacture or production of goods, it need not necessarily be levied at the stage of manufacture or production and may be levied at a later stage and may even be collected from a retailer. It is in the light of these principles that Section 3 of the Act has to be construed. This Section imposes excise duty "on all excisable goods-which are produced or manufactured in India." The Section further imposes this duty "at the rates set forth in the First Schedule." The manner of levy and collection of the duty is, however, left to be prescribed by rules. This is the effect of the words - "there shall be levied and collected in such manner as may be prescribed" - as they occur in Section 3. We are unable to agree that the qualifying words "in such manner as may be prescribed" qualify only "collected" and not "levied". "Levy" is a word of very wide import. The term "imposition" is narrower and is generally used for the levy of a tax or duty by legislative provisions indicating the subject matter of the tax and the rate at which it has to be taxed. The term "levy" is, however, wider and includes imposition and all stages upto assessment. It, however, does not include collection which is separately referred to in Section 3 of the Act [see Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd. - AIR 1972 SC 2563 at p. 2571]. Section 3 of the Act imposes the duty at the rates set forth in the Schedule, on all excisable goods produced or manufactured in India. It does not lay down the stage at which the duty is to attach or the date with reference to which the rate has to be applied. Section 3 of the Act imposes the duty at the rates set forth in the Schedule, on all excisable goods produced or manufactured in India. It does not lay down the stage at which the duty is to attach or the date with reference to which the rate has to be applied. It is not possible to accept the argument that Section 3 impliedly applies the rates of duty as in force on the date of manufacture or production for the reason that though excise duty is a tax on manufacture or production it need not necessarily be levied at the stage of manufacture or production and it may even be levied at the stage the excisable article reaches the retailer. This inference is further supported from Section 4 of the Act which deals with determination of value for purposes of duty. The material point of time with reference to which the value is determined under that Section is the time of removal of the article chargeable with duty from the factory and not the time when it is manufactured or produced. As Section 3 or any other provision of the Act does not expressly or impliedly lay down that excise duty must be levied at the rate prevailing on the date of manufacture or production, it was open to the Central Government to make rules for fixing the time with reference to which the rate of duty must be applied. Rule 9A(1)(ii) which applies the rate prevailing on the date of actual removal of the goods from the factory or warehouse is valid under Section 37(1) as it carries out the purpose of the Act by prescribing the manner of levy of duty under Section 3. 7. We have already referred to the observations of Gwyer, C.J. in Boddu Paidanna's case (supra) that the taxing authority does not ordinarily levy excise duty at the stage of manufacture or production for it is more convenient administratively to levy the duty when the goods leave the factory for the first time. Rule 9A(1)(ii) is in line with this practice. Further, a very strong circumstance which supports our conclusion is the existence of Rule 9A from January, 1945. The scheme under Rule 9A is that the crucial time for levy of duty is the time when the goods are removed or when the duty is paid under the rules. Rule 9A(1)(ii) is in line with this practice. Further, a very strong circumstance which supports our conclusion is the existence of Rule 9A from January, 1945. The scheme under Rule 9A is that the crucial time for levy of duty is the time when the goods are removed or when the duty is paid under the rules. This scheme has continued right from 1945 when the rule was first introduced. The excise tax is one of the most important sources of revenue. The Act is under continuous vigilance of Parliament and the rates of duty are changed from time to time by the annual Finance Acts or by notifications issued under Rule 8 to give effect to Budgets. Parliament must have known that Rule 9A made by the Central Government applies the rate of duty prevailing on the date when the goods are removed. The inaction of Parliament during the last 37 years is not making any provision in the Act to show that the crucial date for application of the rate of duty is the date of manufacture or production and in not otherwise annulling or modifying Rule 9A strongly supports the view that the Rule is not inconsistent with the intention of Parliament as expressed in Section 3. Although rules made under an Act cannot override the Act, but they may be used as contemporanea exposito of an ambiguous provision in the Act specially when they are to have effect as if enacted in the Act [see Hanlon v. Law Society - (1980) 2 All ER 199 (HL) p. 218]. There is additional reason to take the assistance of subordinate legislation in construing a taxing Act for "in the matter of fiscal legislation the initiative is in the hands of the executive" (see J.K. Steel Ltd. v. Union of India - AIR 1970 SC 1173 , p. 1180. Section 38 of the Act as it stood at the relevant time before its amendment by Act No. 22 of 1973 provided that the rules shall have effect as if enacted in the Act. The Section also contains the requirement of laying before both Houses of Parliament. Section 38 of the Act as it stood at the relevant time before its amendment by Act No. 22 of 1973 provided that the rules shall have effect as if enacted in the Act. The Section also contains the requirement of laying before both Houses of Parliament. Even assuming, therefore, that there is some ambiguity in Section 3, the continuance of Rule 9A from 1945 making the date of removal as the crucial date for application of the rate of duty is a very strong factor for holding that the rule is not contrary to the provision made by Parliament in Section 3. The conclusion that Section 3 does not provide as to the time with reference to which the rate of duty is to be applied is also supported by the decision of the Supreme Court in Orient Paper Mills v. Union of India - AIR 1967 SC 1564 . In that case the Supreme Court observed : "The emphasis in Section 4 is on the time of removal of the article chargeable with duty from the factory. This is the only guidance which the Act furnishes." These observations impliedly mean that except Section 4 there is no provision in the Act regarding the time with reference to which the rate of duty is to be applied. In face of Rule 9A when Parliament alters the rate of duty by amending the schedule or when the Central Government alters the extent of exemption by issuing notifications under Rule 8, it must be inferred that the intention is to apply the new rate in accordance with the provision of Rule 9A. In our opinion, the said Rule is "valid and the Excise authorities were right in applying the rates prevailing on the date of removal. The conclusion reached by us is in line with the decisions of the Bombay and Gujarat High Courts although the vires of Rule 9A was not specifically challenged in them [see Union of India v. Elphinstone Spinning and Weaving Mills Co. Ltd. - 1978 E.L.T. (J 680) (Bom.), Radhakrishna Ramnarain Limited v. R. Parthasarathy and Ors. - 1980 E.L.T. (J 709) (Bom.) and Alembic Chemical Works Co. Ltd., Baroda v. Union of India and Ors. - 1979 E.L.T. (J 258). (vi) In Cellular Operators Association of India and Ors. v. Union of India and Ors. Ltd. - 1978 E.L.T. (J 680) (Bom.), Radhakrishna Ramnarain Limited v. R. Parthasarathy and Ors. - 1980 E.L.T. (J 709) (Bom.) and Alembic Chemical Works Co. Ltd., Baroda v. Union of India and Ors. - 1979 E.L.T. (J 258). (vi) In Cellular Operators Association of India and Ors. v. Union of India and Ors. (15-2-2018 - DELHC), it has been held as under :- 10. Omission of a provision signifies deletion of that provision and is normally not treated as different from repeal. The repeal/omission in the present case was not made retrospectively, but applied prospectively. Manufacturers and output service providers were entitled to take benefit of EC and SHE credit on the EC and SHE payable on manufactured goods and output services on or before the cut off date, i.e., 1st March, 2015 in case of manufactured goods and 1st June, 2015 in case of taxable services. They have not been allowed to take credit after the said two dates for the simple reason that EC and SHE ceased to be applicable and were no longer payable after the said dates. The provisos added to Rule 3, sub-rule (7) in clause (b) are really in the nature of concessions confined to a limited and narrow set of cases and are not of general application. Noticeably, they expand the scope and give benefit of utilization of accumulated EC and SHE against payment of excise duty and service tax, which was not the position prior to 1st March, 2015 and 1st June, 2015, respectively. It is also easily apparent as to why the said benefit or concession was granted. These cases certainly fall in a distinct and separate class. The said classification would not fall foul of vice of discrimination. Article 14 is not offended. In fact the petitioners do not challenge and question the provisos, albeit seek additional benefit and concession beyond those granted, even though they were never available earlier. 11. It is in the aforesaid context and background that the petitioners have harped and heavily relied upon the word "subsumed" used in the speech of the Finance Minister while presenting the Budget Speech, as also in the explanation memorandum to the Finance Bill, 2015 and the TRU letter. It would not be correct to understand and interpret the word "subsumed" used as asserted by the petitioners. A Finance Bill or a Budget has financial and tax implications. It would not be correct to understand and interpret the word "subsumed" used as asserted by the petitioners. A Finance Bill or a Budget has financial and tax implications. It is an economic, political and policy statement. Interplay of politics and economics gets reflected in the statement made and relied. Raising or increasing taxes often meets resistance, and on most occasions has to be justified and explained. The statements and explanations given in the present context would show that the Government had decided to increase excise duty and service tax marginally and at the same time had decided to withdraw or abolish EC and SHE. Any exercise of increasing taxes and withdrawing a cess or a tax is undertaken keeping in mind several aspects. This can include revenue collection in the form of increased taxes on one hand, and withdrawal or reduction of cess or another tax so as to curtail the adverse impact due to increase. Budgets do, and are, a balancing exercise. We would not read and hold that EC and SHE for excisable goods and taxable services had continued and were applicable even after 1st March, 2015 or 1st June, 2015 respectively, in the manner that they got included in, and formed a part of, the higher tax rate applicable to excise duty and service tax. Noticeably, the service tax rate had gone up by 2%, from 12% to 14%, with the intent to increase it further in view of implementation of the General Goods and Services Tax in future. In the case of excise duty, the increase was only marginal, from 12% to 12.50%. Pertinently, no statement or assertion was made that the benefit of unutilized EC and SHE credit would be given against excise duty and service tax. The use of the words "subsumed" with reference to the two cesses could well indicate that there would not be an increased tax burden being put on the payers or the consumers, as EC and SHE were being withdrawn. Noticeably, the two cesses and the excise duty and the service tax were always treated as different and separate and crossutilization was never permitted." 9. Heard the Learned Counsel for the parties. 10. Noticeably, the two cesses and the excise duty and the service tax were always treated as different and separate and crossutilization was never permitted." 9. Heard the Learned Counsel for the parties. 10. It is well settled principle of law that the law declared by the Supreme Court is binding on all and when the Division Bench of this Court has held that the judgment is applicable against which no SLP was preferred, any lower authority in rank observing that the High Court was not sure about the similarity of the issue in both the cases otherwise the Bench could have decided the case, in our considered opinion, these observations by Commissioner (Appeals) in Appeal Memo is not only objectionable but it is not permissible under law. We were inclined to grant even the prayer for contempt but to avoid any delay since the sufferer is the petitioner, we have restrained ourselves from issuing any contempt notice against the officers. 11. Even the Tribunal while setting aside the order of the First two Authorities has not given any reasons and simply accepted the appeal memo and has allowed the appeal without reversing the finding arrived at by both the authorities and observed that the Supreme Court judgment is not binding. The notification dated 1st August, 1997 will lapse on 1st August, 1997 and could not be applied subsequently. In our considered opinion, the issue between the parties on the basis of principle of res judicata is concluded by judgment dated 7th July, 2005. The first two authorities rightly observed and allowed the proceedings in favour of petitioner/assessee and Tribunal as well as two Commissioners of Excise department exceeded the jurisdiction and committed an error in making observations against the High Court and the Supreme Court decisions. 12. Thus, the order of the Tribunal is quashed and set aside and that of the original authorities is restored. 13. The petition deserves to be allowed and the same is allowed.