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DOCTRINE OF JUDICIAL DISCIPLINE - Service Tax |
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DOCTRINE OF JUDICIAL DISCIPLINE - Service Tax |
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In litigation the parties to the suit are used to cite the judgments of higher courts in support of their case. The judgments pronounced by High Courts and Supreme Court are the rule of law. The said judgments are binding on the lower courts. Whenever in a case the judgments of higher Courts are cited the court is bound to consider the judgment of higher courts and to follow the same in principle. This is called the doctrine of Judicial Discipline. It amounts of judicial indiscipline if the lower court does not follow the judgments of higher courts even if they are put before the Court for their consideration. In this article some of the decisions of High Court as well as tribunals in the matter of indirect taxation are submitted for the purpose of the readers. Nizam Sugars Ltd., V. Commissioner of Central Excise - 2008 (9) STR 604 (Tri. Bangalore) The tribunal placed on record their disapproval on the action of the Assistant Commissioner in the Order-in-Original in not following the directions of the Tribunal. He has clearly violated the terms of remand order of the tribunal. He has categorically stated that he would not follow the remand direction. This is a clear case of judicial indiscipline. Riga Sugar Co., Ltd., V. Commissioner of Central Excise, Patna - 2008 -TMI - 4718 - CESTAT, KOLKATA Since the authorities below did not have the benefit of decision of the Larger Bench in case 'Larsen & Toubro Ltd., V. Commissioner of Central Excise, Chennai - 2006 (3) STR 321 (Tri. LB) while deciding the matter, we set aside the impugned order and remand the appeal to the original Authority to decide the matter afresh applying the ratio of the cited large Bench decision to the facts of this case. Commissioner of Central Excise, Pune - I V. Madurai Travels - 2008 -TMI - 30626 - CESTAT MUMBAI Judicial discipline requires orders of the High Court to be followed by the Tribunal. Larger Bench decision vis-à-vis Divisional Bench decision, Larger Bench decision is binding. Division bench could not have declared a larger bench decision as over ruled. Only a Bench larger than that of Larger Bench could have declared that decision to have been to have been either expressly or impliedly overruled by a decision of higher forum, or itself over ruled it. The decision of larger bench is to be followed. Pals Micro Systems Ltd., V. Commissioner of Central Excise, Mangalore - 2007 (6) STR (Tri. Bang) The tribunal noticed that the Commissioner (Appeals), Mangalore has committed judicial indiscipline by not applying the Apex Court judgment. Time and again we are finding that the Commissioner (Appeals) is not giving any due respect to the tribunal rulings and the Supreme Court Judgment. He cannot take his own view along with as may be in his opinion is a correct view. TVL Ragam Polymers V. Commercial Tax Officer, Chennai - 2007 (6) STR 292 (Madras High Court) Appellate jurisdiction carries with power to issue corrective direction binding on forum below. Failure on part of latter to carry out directions or show disrespect to or to question propriety or directions destructive of hierarchical system in justice administration. CPC (P) Ltd., V. Commissioner of Central Excise, Coimbatore - 2007 (7) STR 191 (Tri. Chennai) Commissioner cannot pass his order inconsistent with judgment of Apex Court dealing with same question for the reason that it had subsequently admitted a civil appeal filed by department in a different case, reportedly on the same issue. Bicon Ltd., V. Commissioner of Service Tax, Bangalore - 2007 (7) STR 214 (Tri. Bang) We are of the considered opinion that the Commissioner ought not to have taken a different view than one already been expressed by the tribunal. The Commissioner was bound by these orders. Therefore independent view expressed by the Commissioner without referring to these judgments is not correct in law. Pratik Marbles (P) Ltd., V. Commissioner of Central Excise, Jaipur - II Tribunal decision was affirmed by Supreme Court. Impugned Supreme Court order is to be followed by all subordinate courts and tribunals when dispute directly related to decision contained in such order. Strictures against Commissioner (Appeals) are passed in the case. Refund amount was directed to be credited to consumer welfare fund even when issue stood covered by earlier decisions taken note of the order. Commissioner (Appeals) deliberately has not followed judgment despite noting the same. Berger Paints India Ltd., V. Commissioner of Central Excise, Kolkatta - II - 2007 (8) STR 222 (Tri. Kolkatta) Assistant Commissioner has no power to sit over the judgment of the Tribunal's order, the plea that appeal was not decided within 180 days from the date of stay order. Act of Commissioner to adjust the amount without taking Tribunal's order completely irregular. Coercive action when stay order was in force is not permissible. When stay is in operation Revenue shall not make any demand towards impugned order. Jayaswals Neco Ltd., V. Commissioner of Central Excise, Nagpur Bench of co-ordinate jurisdiction must not disregard decision of same strength on its own on an identical question. If a Bench of co-ordinate jurisdiction does not agree with a Bench of same strength, then it should refer the matter to a Larger Bench and refrain from taking upon itself not to follow such decision and take a contra view. Triveni Chemicals Ltd., V. Union of India - 20067 (5) STR 177 (SC) Refund was allowed by appellate authority. Appellant had all along been contending that despite such order the amount in question had not been refunded. It was, therefore, obligation on the part of concerned authorities to comply with the order passed by the Collector. The Authority was bound to do so in view of doctrine of judicial discipline. The same have not being done, in our opinion the plea sought to be raised now that it was for the appellant to prove that the burden of the duty had not been passed to customers cannot be accepted. The tribunal is bound by the ratio of judgments of apex court and other benches of tribunal. A different view cannot be taken as it would amount to judicial indiscipline.
By: Mr. M. GOVINDARAJAN - September 17, 2008
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