JUDGMENT : T.S SIVAGNANAM, CJ. 1. This appeal filed by the importer is directed against the order dated 26th June, 2024, passed by the Customs, Central Excise and Service Tax Appellate Tribunal (Tribunal), by which the appeal filed by the appellant herein challenging the de novo adjudication Order-in-Original dated 12.09.2017 was dismissed. 2. The appellant has raised the following substantial questions of law for consideration : “I. Whether the Hon'ble Tribunal acted without jurisdiction and in breach of judicial discipline by relying upon and reinstating its own earlier three-member decision which had already been set aside by the Hon'ble High Court by its judgment dated 10.3.2010 in Atherton Engineering Co. Pvt. Ltd. v. Union of India, 2010 (256) ELT 358 (Cal), which has not been appealed by any of the parties and has since attained finality? II. Whether the Hon'ble Tribunal failed to appreciate the limited scope of the de-novo adjudication laid down by the Hon'ble High Court in its said judgment dated 10.3.2010 and acted beyond its jurisdiction by restoring findings from a previously quashed decision? II. Whether the Hon'ble Tribunal exceeded its jurisdiction by reopening the issue of classification which had already been finally settled by the Hon'ble High Court, and whether it erred in disregarding the binding nature of the said judgment dated 10.3.2010? V. Whether the Hon'ble Tribunal failed to address the issue of inordinate delay in the conduct of de-novo adjudication proceedings and whether such failure vitiated the impugned order for being in violation of the principles of natural justice? XII. Whether the Hon'ble Tribunal committed an error of law by failing to make any finding on confiscation and redemption fine imposed by the de- novo adjudicating authority even though the original adjudicating authority had not ordered confiscation, thereby rendering its order incomplete and unenforceable? 3. We have heard Mr. Arnab Chakraborty, learned Counsel appearing for the appellant and Ms. Manasi Mukherjee, learned Counsel for the respondent. 4. The case on hand has a chequered history and it may not be necessary for us to recapitulate all the earlier facts as to how the adjudication proceedings were done, how the matter was carried to the Tribunal, where the learned Members rendered differing opinion, reference to the third Member and the orders passed in a writ petition etc. 4. The case on hand has a chequered history and it may not be necessary for us to recapitulate all the earlier facts as to how the adjudication proceedings were done, how the matter was carried to the Tribunal, where the learned Members rendered differing opinion, reference to the third Member and the orders passed in a writ petition etc. This is so in the light of the fact that earlier writ petitioner had approached this Court and filed a writ petition being WP 748 of 2006 challenging the order passed by the Tribunal dated 2.3.2006, which decision is reported in 2007 (21) ELT 464 Tri.(Kol.). This final order passed by the Tribunal is by a majority of 2:1. 5. Before we examine the matter on merits and correctness of the findings recorded by the Tribunal, we propose to answer the question as to whether this appeal could be maintainable before this Court and whether the issue involved touches upon classification of the goods.` In fact, this question was posed by the Court to the learned Advocate appearing for the appellant though not raised by the Department in such form and manner. 6. To answer this question, we may straightaway refer to a few decisions of the Hon’ble Supreme Court which have decided as to when and under what circumstances an appeal would be maintainable before the Hon’ble Supreme Court and when it would be maintainable before this Court in terms of Section 130 of the Customs Act, 1962. The Hon’ble Supreme Court in Commissioner of Customs, Bangalore-1 Vs. Motorola India Ltd. , 2019 (368) ELT 3 (SC) referred to an earlier decision in the case of Navin Chemicals Manufacaturing & Trading Company Ltd. vs. Collector of Customs, (1993) 4 SCC 320 and held that where the value of the goods for the purpose assessment is required to be increased or decreased is a question that relates to directly and proximately to the value of the goods for the purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purpose of assessment, the question arises directly and proximately as to the rate of duty or the value of the goods. 7. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purpose of assessment, the question arises directly and proximately as to the rate of duty or the value of the goods. 7. Noting the above finding rendered by the Hon’ble Supreme Court in (supra), the Hon’ble Supreme Court held that when an order of the appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of the general public importance. It has been further held that certain questions raised or arisen may require interpretation of the Constitution. Once such question of general importance alone are required to be decided by the Hon’ble Supreme Court and the very nature of question raised or arisen, the same necessarily has to involve the issue of law going beyond the inter-parties’ rights and extending to a clause or category of assessees as a whole. On the facts of the said case (Motorolla), the Hon’ble Supreme Court observed that the only question is as to whether the assessee therein has breached the condition which are imposed by the notification for getting exemption from the payment of customs duty or not and the appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole and the question is purely inter se between the parties and is required to be adjudicated upon the facts available and therefore, held that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Act. The decision in Motorola was followed by the Hon’ble Supreme Court in the Commissioner of Central Excise, Customs and Service Tax, Mysore Vs. Such Silk International Ltd. , (2022) 1 Centax 18 (SC), in M/s. Asean Cableship Pte. Ltd. vs. Commissioner of Customs , 2022 (380) ELT 4 (SC) and Commissioner of Central Excise, Hyderabad Vs. Shriram Refrigeration Industries , 2022 (382) ELT 20 (SC). Such Silk International Ltd. , (2022) 1 Centax 18 (SC), in M/s. Asean Cableship Pte. Ltd. vs. Commissioner of Customs , 2022 (380) ELT 4 (SC) and Commissioner of Central Excise, Hyderabad Vs. Shriram Refrigeration Industries , 2022 (382) ELT 20 (SC). In the preceding paragraphs we have quoted the substantial questions of law which are required to be decided in this appeal and on a bare perusal of the same it would be evidently clear the matter concerns disputes inter-parties and it is not a case where the court has to decide the value of the goods for the purposes of assessment or a question which relates to directly and proximately to the value of the goods and not a case where the issue of law would go beyond the inter se parties and extend to a class or category6 of assessees as a whole. 8. In the light of the above, we hold this appeal is maintainable before this Court. Reverting back to the factual position in the instant case, as observed earlier, it would be suffice to note the facts which have arisen after the order passed in WP 748 of 2006, dated 10.3.2010 [2010 256 ELT 358 (Cal.)]. In the said writ petition, the appellant challenged the order passed by the learned Tribunal dated 2.3.2006, which was a final order passed by a majority of 2:1. 9. The appellant is an importer and during October, 1998 to February, 2001, it imported several consignments of the product called `Artemia Cyst (Brine Shrimp eggs)’. The appellant described and declared this product as `prawn feed’ and on this basis goods were assessed provisionally by accepting a bank guarantee as security for the duty that may be finally assessed. If the goods were classified by the Customs as `prawn feed’, there was a duty exemption before 1999 budget and only 5% basic duty after that. The Directorate of Revenue Intelligence intervened during 1999 and stated that the goods were not `prawn feeds’ and they have to be classified differently attracting a higher rate of duty. If the goods are classified as `prawn feed’, the appropriate head under which it will be classified is Customs Tariff Heading 2309.90 under the Customs Tariff Act, 1975. According to the Customs authorities, it would fall under Chapter Heading 0511.99 and that the imported goods were prawn feed. If the goods are classified as `prawn feed’, the appropriate head under which it will be classified is Customs Tariff Heading 2309.90 under the Customs Tariff Act, 1975. According to the Customs authorities, it would fall under Chapter Heading 0511.99 and that the imported goods were prawn feed. Further, the Department was of the view that the `Cysts’ had to be incubated under controlled temperature and oxygen and hydrated in hatcheries and after that incubation period one would get an organism known as Nauplii which is food for prawn and according to them, this imported goods have to undergo some processes to become prawn feed and therefore, there was a misdeclaration of goods and the appellant would have to face its consequences. 10. The appellant challenged the order passed by the learned Tribunal by contending that the provisional assessment was made on or about 15.4.1999 but no final assessment was ever made; the show-cause notice was issued on the basis of the provisional assessment; the show cause notice was adjudicated on the basis of the evidence at the time of provisional assessment; the product imported were eggs with a live organism or embryo. This live organism or embryo upon nurturing and incubation became prawn feed. It was always prawn feed, at its infant stage and the product after nurturing and incubation was not something different from the product imported. Test reports during provisional assessment are not made available and the appellant did not have adequate opportunity to substantiate the contention that the imported goods were goods with the live organism or embryo and after nurturing and incubation they became prawn feed and there was no change of the nature of the product imported. 11. The appellant placed reliance on the decision of the Hon’ble Supreme Court in Commissioner of Income Tax Vs. Venkateswara Hatcheries (P) Ltd., (1999) 237 ITR 174 , where the assessee was in the business of hatchery and the Hon’ble Supreme Court held that the assessee did not contribute to the formation of chicks and the formation of chicks was a natural and biological process over which the assessee had no hand or control and the assessee was helping the natural and biological process of giving birth to chicks and the birth of chicks was an `event of nature’. 12. 12. Reliance was also placed on the decision of the Hon’ble Supreme Court in Commissioner of Central Excise & Customs, Mumbai vs. ITC Ltd., 2006 (203) ELT 532 (SC) to support their contention that the alleged short payment of duty can arise only upon completion of assessment as it was the case of the appellant that no final assessment was ever made. The Hon’ble Court while considering the correctness of the finding rendered by the learned Tribunal took note of the fact that the decision of the Tribunal was based on a decision with regard to importation of prawn Brine Shrimp eggs and the Mumbai Bench of the Tribunal in Commissioner of Customs (P.), Mumbai vs. Atherton Engg. Pvt. Ltd., 2001 (129) ELT 502 (Tri.-Mum.) where the Tribunal accepted the classification made by the Department under Chapter Heading 0511.99. The appellant challenged the said order before the Hon’ble Supreme Court and a SLP was dismissed on 4.4.2002. 13. The Hon’ble Court first examined as to the effect of the decision of the Mumbai Tribunal and held that the decision of the Hon'ble Supreme Court is the final decision on the particular consignment in issue between the parties involved in that litigation and the decision of the Hon'ble Supreme Court cannot be read as an authority for the proposition that any product imported and declared as Brine Shrimp Eggs would necessarily have to be classified ‘other category’ under heading 0511.99. The following reasons were given by the Hon’ble Court to support the above conclusion and it will be beneficial to extract the relevant paragraph of the said order. “11. It should be remembered that the above decision of the Supreme Court is the final decision on the particular consignment in issue between the parties involved in that litigation. I do not read that Supreme Court decision as an authority for the proposition that any product imported and declared as Brine Shrimp eggs would necessarily have to be classified in the 'other category' under the heading 0511 for reasons given by me below 12. It is the categorical case of the writ petitioner that these goods which were imported by them were fertilised eggs They contained embryos or little organisms enclosed within the cysts, which upon incubation in controlled temperature and hydration would become larvae which could be used as prawn feed, it is submitted. 13. It is the categorical case of the writ petitioner that these goods which were imported by them were fertilised eggs They contained embryos or little organisms enclosed within the cysts, which upon incubation in controlled temperature and hydration would become larvae which could be used as prawn feed, it is submitted. 13. If there is an embryo within the egg, then there is a living organism within it Upon such incubation the living organism merely grows, it does not change its nature and character. If there is no embryo within the eggs then there is no living organism and these eggs cannot be used as prawn feed. I am of the opinion that if an embryo is within an egg and it is subsequently incubated in controlled temperature and under hydration the larvae which are subsequently born do not assume the character of any different product but remain in nature and characteristics the same product or organism which is within the egg. Therefore, if the eggs did contain an embryo they could be classified as feeding materials for prawns and ought to have been so classified. These embryos may not be proper prawn feed at the time of importation but could become so, after incubation. Refusing to classify the product as prawn d ought to have been so classpo feed on this basis is not reasonable. In deducing the above principle I have taken a lot of guidance from the case of Commissioner of Income-tax. v. Venkateswara Hatcheries (P) Ltd. reported in (1999) 237 ITR 174 (S.C.) (supra)” 14. Thus, in the above order, the classification issue has been put to rest wherein the Court held if the eggs did contain an embryo they could be classified as feeding materials for prawns and ought to have been so classified. The embryos may not be proper prawn feed at the time of importation but could become so, afar incubation and refusing to classify the product as prawn feed on this basis is not reasonable. In this regard, the decision of the Hon'ble Supreme Court in Venkateswara Hatcheries [P] Ltd. was referred to. The above findings rendered by the Hon’ble Court attained finality and the revenue has not preferred any appeal. In this regard, the decision of the Hon'ble Supreme Court in Venkateswara Hatcheries [P] Ltd. was referred to. The above findings rendered by the Hon’ble Court attained finality and the revenue has not preferred any appeal. After having held so with regard to the classification that the product has to be classified as prawn feed, the Court thought fit to remand the matter for factual inquiry to examine as to whether the imported goods contained an embryo or a live organism and that this factual inquiry ought to have been made upon notice to the appellant/writ petitioner and after giving them an opportunity to counter the evidence of the revenue and to produce his own evidence in support of his contention. With the above finding, the following directions were issued: “14. Therefore, in the circumstances there has to be a factual enquiry which has not been done 15. I do not agree with the submissions of Mr. R.K. Chowdhury that the order of the Commissioner could not have been passed without assessment. In my opinion, such an order is in the nature of an assessment. But nevertheless, such order has been passed without making available the test report of the provisional assessment to the writ petitioner or by considering any material, whether from the seller's invoice or other materials available from the seller or elsewhere, regarding the exact nature of the goods. The pointed fact of enquiry should have been whether the imported goods contained an embryo or a live organism. This factual enquiry ought to have been made upon notice to the writ petitioner and after giving them an opportunity to counter the evidence of the revenue and to produce his own evidence in support of his contention 16. For those reasons, the order of the tribunal dated 2-3-2006 as well as the order of the Commissioner dated 6-11-2002 are set aside. The Commissioner of Customs (Airport and Administration) is directed to rehear and re-decide the matter in accordance with the above observations within a period of 12 weeks from the communication of this order The writ application is allowed” 15. In paragraph 15 above, the argument made on behalf of the appellant that the proceedings cannot be initiated under Section 28 of the Customs Act without there being a final assessment was rejected. In paragraph 15 above, the argument made on behalf of the appellant that the proceedings cannot be initiated under Section 28 of the Customs Act without there being a final assessment was rejected. As against which, the appellant had not carried the matter on appeal and such finding also attained finality. Thus, the scope of remand has been clearly circumscribed by the court and in the de novo proceeding the authority has to scrupulously follow the direction issued by the court and cannot deviate from the same. Unfortunately, the authority lost sight of the effect of the direction and in the de novo adjudication reopened the entire matter and proceed to render a finding against the appellant. 16. The Hon'ble Supreme Court in Union of India vs. Kamlakshi Finance Corporation Ltd. , 1991 [55] ELT 433 [SC] held the principles of judicial discipline requires that the order of the higher appellate authority should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authorities is not acceptable to the department in itself and objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. Further it was held that if this healthy rule is followed the result will not only be undue harassment to assessee and chaos in the administration of law laws. This decision has to be borne in mind in the instant case as we are of the clear view that the adjudicating authority while commencing the de novo adjudication proceeding can culminate the same by an order dated 12.9.2017 virtually sat in judgment over the direction issued by this court. In the decision reported in 2010 [256] ELT 358 [Calcutta] not stopping with that the adjudicating authority proceeded to order confiscation of the goods and also imposed redemption fine. This was clearly without jurisdiction. In the first round, an order of adjudication was passed on 6.11.2002 wherein the adjudicating authority in no uncertain terms holds that the goods are not available for confiscation since they have already been released provisionally at the request of the importer and no redemption fine was imposed. If that be the factual position on de novo adjudication, the authority exceeded its jurisdiction in ordering confiscation of the goods which admittedly was not available and also ordering for redemption fine. If that be the factual position on de novo adjudication, the authority exceeded its jurisdiction in ordering confiscation of the goods which admittedly was not available and also ordering for redemption fine. One more major error committed by the adjudicating authority is to impose penalty on one of the Directors of the appellant, who was no more. This aspect has been specifically pleaded by the appellant before the authority. Though several grounds were raised by the appellant before the learned Tribunal, the learned Tribunal lost sight of the scope of the remand pursuant to the order passed by this court. Despite the fact, it has noted the order passed by this court in paragraph 11.2 of the impugned order. However, the appellant was non-suited on the ground that they never took any stand that Brine Shrimp Eggs would be classified under a particular heading and that eggs without larvae would be classified under a different heading and this observation made by the learned Tribunal in paragraph 13.1 and other paragraphs are not sustainable as it tantamount to sit in judgment over the order passed by this court in the writ petition filed by the appellant when the department had not carried the matter on appeal. It is incumbent upon the department to accept the judgment and all the directions contained therein in full, rather the department was selective in accepting a portion of the judgment which was decided in favour of the department and against the appellant. This would clearly show that the order of de novo adjudication was thoroughly failed and this aspect of the matter has been lost sight of by the learned Tribunal while passing the impugned order which would render impugned order perverse. One more aspect which is to be noted is the inordinate delay in commencing and completing the de novo proceeding. The writ petition filed by the appellant was allowed on 10.3.2010 and the order passed by the Tribunal dated 2.3.2006 as well as the order of the Commissioner dated 6.11.2002 were set aside and the Commissioner of Customs (Airport & Administration) was directed to re-hear and re-decide the matter in accordance with the observation within a period of twelve weeks from the date of the order. This direction has not been complied with by the department and it has taken seven long years for the department to commence the de novo adjudication that too after a direction was issued in a writ petition filed by the appellant in WP/203/2017 dated 13.4.2017. The delay is attributable to the department and the department is solely responsible for the delay as is evident from the submissions made before the learned writ court in WP/203/2017 to the effect that they were under the impression that an appeal was filed against the order passed in the writ petition dated 10.3.2010 when the fact remains that no such appeal was preferred. Therefore, this delay has resulted in great prejudice to the appellant which cannot be compensated. In this regard, we take note of the decision of the Hon'ble Supreme Court in Union of India vs. ATA Freight Line (I) Pvt. Ltd., (2023) 6 Centax 153 (SC) wherein the Hon'ble Supreme Court dismissed the appeal filed by the Union of India. Against the decision of the High Court of Bombay in ATA Freight Line (I) Pvt. Ltd. vs. Union of India, (2022) 1 Centax 32 (Bombay) wherein the Hon’ble Division Bench of the High Court of Bombay held that the department cannot adjudicate notices that were transferred to call book without communicating the same to the assessee for seven to eleven years and the department was under a duty to take notice issued to its conclusion by adjudicating the same within a reasonable time. The case on hand is better on facts as there a time bound direction given by the learned writ court while allowing the writ petition filed by the appellant. So, this is also one more ground to set aside the adjudication order as well as the order passed by the learned Tribunal. Yet another very important issue which comes to light from the order passed by the Tribunal reported in 2006 (197) ELT 428 (Kolkata) that all along the department had been classifying ‘prawn feed’ under heading 2309.90 of the Customs Tariff Heading as ‘prawn feed’ and it is only after a notification issued by the Government reducing the rate of duty, a sudden change of stand has been taken by the department. This is also one more fact which should also enure in favour of the appellant. 17. This is also one more fact which should also enure in favour of the appellant. 17. Thus, for all the above reasons, we are of the clear view that the adjudicating authority while carrying out the de novo proceeding clearly exceeded its jurisdiction and proceeded to re-open a settled issue which could not have been done and this aspect of the matte has not been taken note of by the learned Tribunal in a proper sense which results in perversity in the order passed by the learned Tribunal. 18. For the above reasons, the appeal is allowed and the order passed by the learned Tribunal as well as the de novo adjudication order are set aside and the substantial questions of law are answered in favour of the appellant. 19. The stay application, IA No:GA/2/2024, stands allowed. 20. In the preceding paragraph we have noted the gross delay which had occurred in the entire process. The import of the consignment covered under 19 bills of entry was effected in August 1998. The show-cause notice was issued by DRA on 23.1.2002 and roughly about the same time the goods were permitted to be provisionally cleared subject to furnishing the bank guarantee. The appellant submitted reply to the show- cause notice which was answerable to the jurisdictional Commissioner, namely, the Commissioner of Customs, Calcutta, who took up the same for adjudication and an order of adjudication was passed on 6.11.2002. The appellant carried the matter on appeal to the learned Tribunal. The learned Tribunal delivered a split verdict which necessitated the matter to be referred to a third member and by a majority decision the learned Tribunal held against the appellant by an order dated 2.3.2006. This order was put to challenge by filing WP/748/2006 which was pending and finally allowed on 10.3.2010. No appeal was preferred against the said order. The de novo adjudication did not commence within the time permitted by the High Court but commenced after a period of seven years, that too, after a direction was issued by this Court in a writ petition filed by the petitioner in WP 203/2017 dated 13.4.2017. The de novo adjudication was commenced and completed and an order was passed on 12.9.2017. 21. The de novo adjudication was commenced and completed and an order was passed on 12.9.2017. 21. Against this order the appellant preferred appeal before the Tribunal and the learned Tribunal dismissed the appeal filed by the appellant by order dated 26.6.2024, against which this appeal was filed before this Court and the appeal was listed before this Court for the first time on 5.3.2025, subsequently again listed on 2.7.2025 to enable the appellant to file a supplementary affidavit and raise substantial questions of law. This direction was complied with today (10.7.2024) and the appeal was heard out on merits and has been allowed by this judgment. 22. The question which would now arise is whether the order and direction issued in WPO 748 of 2006 on 10.3.2010 is feasible of compliance. The answer to this question should be a definite `no’. By efflux of time the direction cannot be complied with and as of now direction has now become unworkable. Since the Court directed an enquiry to be done whether the imported goods contained an `embryo’ or a live organism and the factual enquiry was required to be done upon notice to the appellant/writ petitioner and after giving them an opportunity to counter the evidence of the revenue and to produce its own evidence in support of its contention. Admittedly, the product was an imported `embryo’ or a live organism and though it is stated across the Bar that representative samples have been drawn by the Department, it cannot be disputed that those samples will not be in the same condition as on the date of import, that is, on August 19, 1998. Thus, as on date, the direction issued by the Single Bench is not feasible of compliance. 23. Having held so, the only conclusion that can be arrived at is to direct the Department to accept the classification as adopted by the appellant and accordingly, there will be a direction to the adjudicating authority to accept the classification as adopted by the appellant by classifying the imported goods under Heading 2309.90 and extend the benefit of the relevant notifications in favour of the appellant/importer. This direction be carried out by the concerned authority within a period of three weeks from the date of receipt of the server copy of this order. This direction be carried out by the concerned authority within a period of three weeks from the date of receipt of the server copy of this order. If the direction is not complied with within the timeframe, then the Court will be constrained to take serious note of the same and the concerned Officer will be held personally responsible. I agree. (CHAITALI CHATTERJEE (DAS), J.)