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TMI Blog2017 (5) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... so as to include face cream and the toilet articles to include tooth paste and powder. Thus the statute itself have clarified the classification of the products manufactured by the writ petitioner as face cream and the tooth paste and tooth powder. There is no question as to whether it is an ayurvedic medicine or cosmetic cream. The classification of a product under a statute cannot be read into another statute. Each statute has to be interpreted on the basis of the provisions contained therein. Therefore, classification of the products in the said judgments dealing with the Central Excise Laws are not relevant for examining the classification of the products under the local Act, which have specifically included face cream under the Entry of Cosmetics and tooth paste and tooth powder under the Entry of Toilet articles. Petition dismissed - decided against petitioner. - W. A. No. 102/2006 - - - Dated:- 26-4-2017 - Hemant Gupta, CJ And Ved Prakash Sharma, JJ. Shri Yogesh Mittal, counsel for the applicant-State Shri P.B.S. Nair, counsel for the respondent ORDER Per Hemant Gupta, Chief Justice. The challenge in the present appeal is to an order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rate of tax Entry 21 Part II Schedule II Scents, perfumes, hair tonics, hair shampoo, depilatories and cosmetics including face creams, snows, lipsticks, rouge and nail polish. 16% Entry 2 Part- III Schedule- II Toilet articles including tooth paste, tooth powder , perfumed hair oil, talcum powder, brushes, razors, razor blades, but including articles specified in Entry 21 of Part-II 12% Entry 16 Part-IV Schedule-II Drugs Medicines 3% 05. It is thus contended that the judgment of this Court in Dawar Brothers case is the judgment per incuriam rendered in ignorance of the statutory provision and thus, is not a binding precedent. It is the judgment in Dawar Brothers case which has been made basis to quash the notices for reassessment issued by the Assessing Officer. 06. On the other hand, Mr. Nair appearing for the petitioner argued that the writ petitioner had earlier filed a suit before the Civil Judge, Thane challenging the classification made by the Asst. Collector, Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be classified as pharmaceutical product for levy of excise duty under Chapter 30 and not as cosmetic under Chapter 33 of the Central Excise Tariff Act, 1985. The department was also given liberty to take such tests if entitled to in respect of the products in question. The matter again travelled to Supreme Court which was decided in a judgment reported as (2007) 13 SCC 270 (Union of India Anr. Vs. Vicco Laboratories. The Court held as under:- 32. Case of the respondent is that the classification of the said products having attained finality, pursuant to the decision of this Court, the appellants have no jurisdiction to issue impugned show-cause notice on the ground on which it has been issued and it virtually amounts to reopening of the issue which stands concluded by the decision of this Court, and that therefore it is an abuse of process of law. The High Court after referring to the history of litigation rightly concluded that the matter stood concluded by judgments of this Court and the high Court in the respondent's case. 08. The issue before the Bombay High Court or before the Supreme Court was in respect of the entries for the purpose of levy of excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erable to some other enactments and Acts and were not attracted to point in issue. 11. The said argument of the revenue is factually incorrect. No doubt the drugs and medicines falling in Entry 16 Part-IV Schedule-II of the Act are not defined but cosmetics have been explained so as to include face cream and the toilet articles to include tooth paste and powder. Thus the statute itself have clarified the classification of the products manufactured by the writ petitioner as face cream and the tooth paste and tooth powder. There is no question as to whether it is an ayurvedic medicine or cosmetic cream. The entry is face cream such as turmeric cream manufactured by the writ petitioner. It would attract rate of taxes @ 16 per cent in terms of Entry 21 of Part II of Schedule II of the Act. The entries are clear and categorical that the face cream attracts rate of tax @ 16 per cent. It is not the case that the turmeric cream manufactured by the writ petitioner is not a face cream. Once a face cream manufactured by the writ petitioner falls in Entry 21 of Part II of Schedule II of the Act, it attracts rate of tax @ 16 per cent. Similarly, in respect of tooth paste or powder, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Articles 14 and 21 of the Constitution, these directions were legally wrong. 47 We are of the opinion that Shri Jethmalani is not right when he said that the decision was not made per incuriam as submitted by the appellant. It is a settled rule that if a decision has been given per incuriam the court can ignore it. It is also true that the decision of this Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 : (1955) 2 SCR 603, 623] was not regarding an order which had become conclusive inter parties. The court was examining in that case only the doctrine of precedents and determining the extent to which it could take a different view from one previously taken in a different case between different parties. 14. Another Constitution Bench in a judgment reported as Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682, the Supreme Court held that the Latin expression per incuriam means through inadvertence. 15. In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , the Court held that the Court is not bound by earlier decision if it was rendered without any argument, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Bihar v. Kalika Kuer, (2003) 5 SCC 448, the Supreme Court quoted from Halsbury's Laws of England (4th Edn.) Vol. 26 to hold that a decision is per incuriam which is given in ignorance of some inconsistent statute or binding authority. The Court held as under:- 5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) we find it observed about per incuriam as follows: A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.] ; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where another Division Bench of this Court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the Court had this material, it must have reached a contrary decision. The Court held as under:- 49. It must be emphasised that the doctrine of per incurium only applies where another Division Bench of this Court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the Court had this material, it must have reached a contrary decision. This is per incurium. This doctrine however cannot be extended to a case where if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion. 19. Since the Learned Counsel for the revenue erroneously conceded in Dawar Brothers s case that there is no statutory provision, therefore, the judgment of the Division Bench of this Court in Dawar Brothers case is not a binding precedent. It is judgment per incuriam. 20. The judgments of Supreme Court in M/s Vicco Laboratories case deals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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