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TMI Blog2016 (7) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... nst these orders, we have no quarrel. But, the opinion expressed by the Division Bench in Metal Weld Electrodes [2013 (11) TMI 240 - MADRAS HIGH COURT] in paragraph 81 of its decision that writ petitions are not maintainable, cannot be accepted by us for two reasons. The first reason is that in the second part of paragraph 38 of Rajkumar Shivhare [2010 (4) TMI 432 - SUPREME COURT], the Supreme Court has carved out certain exceptional circumstances, in which, the writ petitions are maintainable. Therefore, the reading of Rajkumar Shivhare by the Division Bench in Metal Weld Electrodes may not be fully correct. The second reason as to why we cannot agree with the opinion expressed by the Division Bench in Metal Weld Electrodes (paragraph 81) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e completely exempt. - This aspect, though raised by the writ petitioner, has not at all been considered by the Tribunal while deciding the application for waiver. - Matter remanded back to tribunal. X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether an appeal would lie against such applications, under Section 35G of the Central Excise Act or Section 130 of the Customs Act. 6. It was contended on behalf of the Department that appellate remedy is the only remedy and that the writ petitions were not maintainable. But, it was contended by the assessees that as against certain orders, no substantial question of law can be raised and that in such circumstances, only a writ petition could be maintained. After referring to the decision of the Supreme Court in Rajkumar Shivhare Vs. Assistant Director, DoE [2010 (4) SCC 772], a Division Bench of this Court answered the question referred to them in Metal Weld Electrodes, in paragraph 80 as follows : "Thus, by considering all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion expressed by the Division Bench in Metal Weld Electrodes (paragraph 81) is that the question referred to the Bench has already been answered in paragraph 80. What is stated in paragraph 81, is an opinion, which appears to have been recorded as a corollary to what was recorded in paragraph 80. But, whatever is the answer provided in paragraph 80 to the reference alone can be taken as having arisen directly for consideration before the Division Bench. It is too well settled that a judgment is a precedent for what it lays down and not what follows out of it. 10. Therefore, we are of the considered view that the answer given in paragraph 80 of its decision by the Division Bench in Metal Weld Electrodes, is perfectly correct. But, at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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