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TMI Blog1990 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 154/86-Cus., dated 1st March, 1986 read with Heading 84.62. The Assistant Collector had rejected the refund claim and had denied the benefit of exemption notification and being not satisfied, an appeal was filed before the Collector (Appeals) and the Collector (Appeals) had extended the benefit of Notification No. 154/86-Cus., dated 1st March, 1986. 3. Being aggrieved from the aforesaid order, the revenue has filed an appeal before the Tribunal. 4. Shri M.S. Arora, the learned JDR who has appeared on behalf of the applicant, pleaded that the applicant s case is fully covered by a judgment of the Bombay High Court in the case of Vishal Electornics Pvt. Ltd. v. Union of India reported in 1989 (44) E.L.T. 420 (Bom.), where the Bombay High Court had held that the exemption notification not construable to apply to goods not specified therein. In the Notification No. 172/77-Cus., dated 8th August, 1977 there was only mention of TV camera and there was no mention of lenses and as such the Hon ble High Court had held that the benefit of notification to Television Cameras under Heading 85.15.1 not extendable to lenses covered under Heading 90.02 on the presumption of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the [Customs and Tariff Act, 1975 (51 of 1975)]; or any other law for the time being in force, on goods imported into, or exported from India. Shri Sridharan, the learned Advocate referred to a judgment of the Bombay High Court in the case of Apar Private Ltd. and Others v. Union of India and Others reported [1985 (22) E.L.T. 644 (Bom.)] and laid special emphasis on paras No. 7 and 42 of the said judgment, where in para No. 7 the Bombay High Court had held that"... Once exemption is granted under Section 25(1) it would mean that as envisaged by Section 12 of Customs Act, the exemption notification provides otherwise and the goods are not chargeable to duty under Section 12..." In para No. 42 similar observations were made. Shri Sridharan argued that Vishal Electronics judgment of the Bombay High Court reported in [1990 (29) ECC 34 (Bom.)] = [1989 (44) E.L.T. 420] is sub silentio and is not binding. He has also referred to a judgment in the case of Indian Express Newspapers (Bombay) Pvt. Ltd. and others v. Union of India and others reported in [1985 (4) EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 151. He has argued that this judgment was referred to by the Tribunal in the case of Collector of Central Excise v. Narain Dass Saraf reported in 1985 (22) E.L.T. 823. He has also referred to another judgment of the Tribunal in the case of Govindaraju and Another v. Collector of Central Excise, Bangalore reported in 1985 (22) E.L.T. 546 (Tribunal) where it was held that Merely culling out a few sentences here and there from a judgment does not amount to citation of a precedent of binding nature. Shri Arora argued that in the case of Apar Private Ltd. and Others v. Union of India and Others reported in [1985 (22) E.L.T. 644] cited by the learned Advocate this issue was not before the Bombay High Court. Shri Arora argued that the alternative plea of the respondents for classification under Heading 9806.00 is not acceptable, as it is a residuary heading. When there is a heading the same has to be applied. Shri Arora argued that the Tariff should be interpreted in such a way that the heading does become redundant. He has pleaded for the grant of stay. 8. We have heard both the sides and have gone through the facts and circumstances of the case. The revenue s main reliance is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers reported in 1978 (2) E.L.T. J 311 are as under :- By virtue of Section 38 rules made and notifications issued are required to be laid on the table of the House, and become part of the statute itself. They, therefore, are constitutional and valid and do not violate Articles 14 or 19 of the Constitution . This Tribunal had the occasion to give its observations in respect of sub silentio decision in the case of Collector of Central Excise v. Surgichem reported in 1987 (27) E.L.T. 548. Relevant extract from para No. 5 from the said judgment is reproduced below :- 5......We are not inclined to follow the earlier judgment of the Tribunal in the case of J.L. Morison, Son and Jones (India) Ltd., Bombay reported in 1984 (15) E.L.T. 251 in which case the Tribunal had ordered the classification of Adhesive Plaster B.P.C. under Item 14E. The judgment was based on the statement of Shri D.B. Engineer Advocate. It was in the nature of the concession. In Salmon on Jurisprudence Twelfth Edition Section 27 page 153 it is opined that A decision passed sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Tariff and he leaves it to the Bench. The Adhesive Plastic B.P.C. Tape does not possess any medicinal or therapeutic properties. It is a surgical dressing in Pharmaceutical and commercial parlance. Accordingly, we hold that the adhesive plastic B.P.C. manufactured by the respondents falls under Tariff Item 68. In the result the appeal filed by the revenue fails." 9. In view of the above discussion, we are of the view that binding effect of the Vishal Electronics Pvt. Ltd. judgment reported in 1989 (44) E.L.T. 420 is arguable. The matters are subjudice. It will not be proper for us to give our further observations. Prima facie merits of the case in favour of the revenue are thus arguable. It is not disputed that the financial position of the respondents is very sound. 10. Keeping in view the totality of the facts and circumstances of the case, we are of the view that the facts and circumstances do not justify the grant of stay. The above captioned eight stay applications are dismissed. While disposing of the stay applications, we have duly taken into consideration the financial position of the respondents. 11. Before we part with the matters, we would like to make further o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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