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TMI Blog2008 (8) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... peals and being heard together. Thus once the clubbing petition is filed with the registry being part of this Tribunal, the Tribunal had the knowledge of pendency of the appeal of the Revenue. However, the learned Departmental Representative has fairly conceded that he was not aware about the pendency of the Department's appeal against the impugned order of the CIT(A) at the time of hearing of assessee's appeal and therefore could not point out this fact during the said hearing. However, he has contended that since the appeal of the Department was not heard along with the assessee's appeal there was an error in the order of this Tribunal dt. 15th Feb., 2008. He has further pointed out that Hon'ble Supreme Court in the case of CST vs. Vijai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, the judgment relied on by the Departmental Representative was not applicable in the facts and circumstances of the case. He drew our attention to the second page of the judgment of the Hon'ble Supreme Court and read out the last para and pointed out that in that case the order was set aside on the basis of concession made by the learned counsel for the assessee. Then he referred to another decision of the Hon'ble Supreme Court in the case of Commr. of Customs vs. Vasant Manganlal Chokshi 2006 (204) ELT 5 (SC). In para 13 of the decision the Hon'ble Supreme Court has clearly held that unless and until the Department has pointed out to the Tribunal that its appeal was also pending, the Tribunal cannot be said to have committed an error b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Udyog has observed as under: "To meet out justice to the parties and overcome the difficulty arising in the circumstances indicated above, we suggested to the counsel of the parties that both the appeal should be reheard by the Tribunal and counsel for both parties fairly agreed that it should be done. We, accordingly, allow this appeal, set aside the order of the High Court as also the two separate orders of the Tribunal by consent of the parties and direct that Appeal No. 1366 of 1980, filed by the assessee and Appeal No. 541 of 1981, filed by the CIT relating to the year 1978-79 shall be reheard. The Tribunal shall hear both the appeals on the same day and dispose them of by a common judgment to avoid any further difficulty. There sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the assessee that the Hon'ble Supreme Court itself has clarified the situation in the case of V.M. Salgaocar Bros. (P) Ltd. Etc. vs. CIT. Para 5 of this decision reads as under: "5. Different considerations apply when a SLP under Art. 136 of the Constitution is simply dismissed by saying 'dismissed' and an appeal provided under Art. 133 is dismissed also with the words 'the appeal is dismissed'. In the former case it has been laid by this Court that when SLP is dismissed this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the Court means is that it does not consider it to be a fit case for exercise of its jurisdiction under Art. 136 of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where SLP should be granted. In Union of India vs. All India Services Pensioners' Association (1988) 2 SCC 580 this Court has given reasons for dismissing the SLP. When such reasons are given the decision becomes one which attracts Art. 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the Courts within the territory of India. It, therefore, follows that when no reason is given, but a SLP is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Art. 141 of the Constitution.' It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f r. 1 of Order 47 of the CPC" Thus, the above observation of the Hon'ble Supreme Court clearly shows that when the Hon'ble Supreme Court passed on order in SLP and also given reasons, then such order would also constitute binding precedent on the lower Courts. 5. Moreover, the Tribunal in its order in the case of Smt. P. Shanti, in which one of us was signatory, has observed as under: "3. It is not brought to our attention whether any representation was given to the Tribunal about the pendency of the Departmental appeal and petition for clubbing of the same. In the absence of clinching evidence, the order cannot be said to erroneous. However, in principle, we accept that it is a settled law that cross-appeals have to be heard togethe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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