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TMI Blog2017 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... jaj Auto, only upon exercise of appellate jurisdiction, appeal therein was dismissed. Therefore in the order of dismissal passed by Apex Court, Tribunal's order has been merged. As a result of which decision in Bajaj Auto reached to its finality. Apex Court has held that in spite of having granted leave to appeal, the Court may dismiss the appeal on such ground as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of Apex Court results in superseding the decision under appeal and thereby attracts the doctrine of merger. The irresistible conclusion that can be drawn is that the Bench referring the matter to Larger Bench should have examined all the four appeals before it, threadbare on the facts, pleadings of both sides and evidence as well as law applicable thereto, to arrive at its conclusion and stated reason of reference in clear terms having regard to the law as has been explained hereinbefore. Only upon detailed examination of each case, the Division Bench may have occasion to know whether the earlier decision of Tribunal on the same point is an impediment to the Referring Bench to reach to a conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the four appeals relate to the issue of classification of the imports made during different periods i.e., prior to and post 1.3.1986 when there were different tariff entries appeared in statute book. The periods covered by these appeals are 1983-84, 1984-85, 1996-97 and 1997-98 and all these appeals touched the levy of basic customs duty, excise duty and also levy of additional duty of customs. So also during part of such disputed period i.e. prior to 1.3.1986, the goods whether shall fall under CTH 84.45/48 was in dispute. Revenue claimed the goods to fall under CTH 82.05. For the rest of the periods i.e. after 1.3.1986, while Revenue claimed the goods to fall under CTH 820730, assessee claimed that to have been covered by CTH 846694 for the purpose of levy of basic customs duty. 4. The claim of classification under CTH 82.05 and 8 4.45/48 prior to 1.3.1986 is concurred with levy of basic customs duty . In respect of levy of additional duty of customs, assessee claims that the goods belong to Tariff Item 68, whereas Revenue claims the same to fall under Tariff Item 51A and thereafter the classification claimed by Revenue under CTH 8207 while appellant claimed classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngg. Locomotives Co Ltd v. Collector of Customs, Bombay [1997 (90) ELT 59 (Tribunal). We have examined some of the germane decisions below. [Emphasis supplied] 5.1 Appellant says that in para 13 of the order how the appellant was aggrieved has been recorded by the Bench as under: 13. Appellant is aggrieved that their claim was rejected by the lower authorities without considering their submissions. According to Learned Counsel, the dies/tools cannot be disaggregated from the machines for pressing because they cannot work independently and that tools or dies of heading 8207 performs one identified function whereas their imported tools act simultaneously on the same metal sheet. It was also contended that note 2 of Section XVI makes this abundantly clear. Claiming that General Rules for Interpretation require that the more specific description would prevail over the more general Learned Counsel contends that parts of the press machines is the appropriate entry. [Emphasis supplied] 5.2 The referring Bench of Tribunal proceeded to examine the matter in para 15 onwards of the order going into the respective entries under Chapter 82 and 84 of the Customs Tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal on earlier occasion, that will be destructive of the institutional integrity itself. What is important is the Tribunal as an institution and not the personality of the members constituting it. If a Bench of the Tribunal wishes to take a view different from the one taken by the earlier Bench, the propriety demands that it should place the matter before the President of the Tribunal so that the case is referred to a Larger Bench, for which provision exists in the Act itself. In this behalf, the following observations by a three Judge Bench of this Court in Sub-Inspector Rooplal Anr. v. Lt. Governor Ors., (2000) 1 SCC 644 are quite apposite : At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a Larger Bench so that the difference of opinion be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India, AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. [Emphasis supplied] 5.6 Learned counsel for the appellant further submits that the decision of Tribunal in the case of Purewall Associates Ltd. Vs. CC, Bombay - 1984 (15) ELT 490 (Tribunal) holding the field was subject matter of scrutiny in Civil Appeal No.1716 of 1984 before Hon'ble Supreme Court and the Hon'ble Court by its order dated 18.2.1985 dismissed Revenue's appeal. Accordingly, order of the Tribunal merged therein. However such order of the Hon'ble Court whether reported or not is not traceable at this stage. But the referral Bench in the present reference has expected the Larger Bench to review the decision of Apex Court in Purewall's case to answer the reference which is not permitted in law. He further submitted that after hearing the counsel concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by this court that when a special leave petition 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 article 136 of the Constitution. That certainly could not be so when an appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal from which the appeal is provided under clause (3) of article 133. This doctrine of merger does not apply in the case of dismissal of a special leave petition under article 136. When an appeal is dismissed the order of the High Court is merged with that of the Supreme Court. We quote the following paragraph from the judgment of this court in the case of Supreme Court Employees' Welfare Association v. Union of India, AIR - 1990 SC 334 ; [1989] 4 SCC 187 (at page 344 of AIR 1990 SC) : 22. It has been already noticed that the special leave petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is sweeping in its nature. It is a residuary power in the sense that it confers an appellate jurisdiction on the Supreme Court subject to the special leave being granted in such matters as may not be covered by the preceding articles. It is an overriding provision conferring a special jurisdiction providing for invoking of the appellate jurisdiction of Supreme Court not fettered by the sweep of preceding articles. Article 136 opens with a non-obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an untrammeled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party; only a discretion is vested in Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right. [ Emphasis supplied ] 5.10 Placing para 14 of the above judgment, learned counsel says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under :- 1. While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave; 2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out; 3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracter of the order therein have different implications. The said paragraph reads as under:- 40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the conduct of the petitioner having no disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are - heard and dismissed , dismissed , dismissed as barred by time and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say dismissed on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel further submitted that the sum and substance of the judgment in Kunhayammed (supra) is explained further by Apex Court in para 41 of the judgment stating that once a Special Leave Petition is granted, the door for exercise of appellate jurisdiction of the Court opens and the order impugned before Apex Court becomes an order appealed and the outcome of the decision of the Apex Court thereon is the appellate order of the Supreme Court merging the order of the lower court. It may happen in certain circumstances that while granting leave to appeal, even the appeal is dismissed. In such circumstances also the order has the character of the appellate order. Placing para 43 of the judgment, different consequences of an appellate orders were explained. Placing para 44 of the judgment, learned counsel says that the ratio laid down in Kunhayammed case (supra) has been summarised by the Apex Court in this paragraph which reads as under:- 44. To sum up our conclusion are : (i) Where an appeal or revision is provided against an order passed by a court, Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C. [Emphasis supplied] 5.15 Following the ratio laid down in the judgment of Apex Court in the case of Kunhayammed (supra), learned counsel submitted that once an order is passed or judgment is delivered by Apex Court in Civil Appeal jurisdiction, that is an order/judgment passed in the appellate jurisdiction in a Civil Appeal and that results in finality of the litigation. Therefore order of the Apex Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al)] which has been followed in Delhi Tin Drum Factory v. Collector of Customs [1989 (43) E.L.T. 531 (Tribunal)] and subsequently in Lohia Starlinger Ltd. v. Collector of Customs [1992 (57) E.L.T. 105 (Tribunal)]. In that appeal the issue before the Bench was the same as in the present one i.e. classification of dies either under Heading 82.05 or under 84.45/48. Heading 82.05 at the relevant time covered interchangeable tools for hand tools... including dies for wire drawing, extrusion dies or metal and rock drilling bits. The Bench took note of the definition of the term `interchangeability' in the General Terms and their Definitions concerning Standardisation and certification issued by the International Organisation for Standardisation figuring in its ISO Guide 2 of July 1983. This defines `interchangebility' as The suitability of a product (products) to fulfil the relevant requirements . The Bench was of the view that the reference to interchangeable tools in Heading 82.05 was with reference to the tools. It did not mean that the machine to which the tools were fitted were capable of doing multiple jobs. Since one die could manufacture only a particular part a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een held by Apex Court in the case of Gammon India Ltd. (supra). In that case, the Apex Court has warned the Tribunal that there should not be unwanted difference without finding reasons as to impediment of the earlier decision to refer to the Larger Bench following the rule of discipline. Therefore difference should have been brought out in clear terms by the referring Bench as to what extent the Bench found difficulties to reach to its own conclusion. 6. Per contra, learned AR for Revenue submits that the referring Bench did not consider the preliminary issue on the maintainability of the appeal on merit since the appellant without challenging the adjudication in appeal Nos. C/442/04, 444/04 and 445/04 , came for refund which was denied by the Authority below. The further objection of Revenue in Appeal No.C/443/04 is that against the order of remand, the appellant has come up before Tribunal prematurely. But, when the records of the case were examined, it is apparent that the appellant was aggrieved by the orders appealed for which it came to Tribunal. Repelling the argument of Revenue, learned counsel says that such preliminary objection raised by Revenue befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reinbefore, that Tribunal has no jurisdiction to review whether Purewall Associates Ltd. (supra) or Bajaj Auto Ltd. (supra) lays down correct proposition of law when Apex Court has decided those appeals in its Civil Appellate jurisdiction and orders of Tribunal have been merged in the decisions of the Apex Court. 8.4 We may only state that the decision in a case is a precedent only on the facts and circumstances of the case to the extent pleaded and such pleading supported by evidence as well as the law applied thereto. Therefore decisions of Apex Court in the case of re Purewall Associates and re Bajaj Auto are precedent on their respective field. We are reminded what is meant by the doctrine of star decisis as has been explained in the case of Medley Pharmaceuticals Ltd. - 2011 (263) ELT 641 (SC) . Para 34 of the judgment in that case is relevant to appreciate such rule which reads as under:- 34. It is settled law that this Court should follow an earlier decision that has withstood the changes in time, irrespective of the rationale of the view taken. It was held by a Constitution Bench in the case of Waman Rao v. Union of India, (1981) 2 SCC 362 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied] 9.2 It may be stated that in the case of Bajaj Auto (supra) , only upon exercise of appellate jurisdiction, appeal therein was dismissed. Therefore in the order of dismissal passed by Apex Court, Tribunal's order has been merged. As a result of which decision in Bajaj Auto reached to its finality. Apex Court has held that in spite of having granted leave to appeal, the Court may dismiss the appeal on such ground as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of Apex Court results in superseding the decision under appeal and thereby attracts the doctrine of merger. Accordingly the order of Tribunal in Bajaj Auto case (supra) has merged in the order of dismissal passed by Apex Court as has been reported in 2002 (142) ELT A278 (SC). 9.3 Further, explaining the law, Apex Court has also stated in para 44(vi) of the judgment in Kunhayammed (supra) that once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merger; the order may be reversal, modification or merely affirmatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h issue. The Larger Bench of Tribunal had occasion to come across such a situation in the case of Steel Authority of India Ltd. - 2010 (256) ELT 737 (Tri.-LB). The Bench has stated in clear terms that judgment of Apex Court in Paras Laminates (P) Ltd. case was although relating to a reference to a Third Member in case of difference between two Members of the Bench, the same shall apply to a reference to Larger Bench. In para 8 to 14, the Larger Bench has explained the facts and circumstances in which a reference can be made to a Larger Bench. Without dilating the matter further, it is considered proper to reproduce the said paragraphs as under for convenience of reading:- 8. The provisions of law, as comprised under the Central Excise Act, 1944 read with the provisions of Customs Act, 1962, nowhere disclose any provision regarding the matter for reference to a Larger Bench. Undoubtedly, there are provisions for reference to a third Member in case of disagreement between the two Members of Division Bench on any issue. The point relating to such power of the Tribunal for reference to a Larger Bench came for consideration before the Apex Court in the matter of Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those exercising judicial power must have the necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as an erroneous decision in the earlier case. In such circumstances, it is but natural and reasonable and indeed efficacious that the case is referred to a larger Bench. This is what was done by the Bench of two members who in their reasoned order pointed out what they perceived to be an error of law in the earlier decision and stated the points for the President to make a reference to a larger Bench. 10. That the President has ample power to refer a case to a larger Bench is not in doubt in view of sub-section (5) of Section 129C, which we have set out above. That provision clearly says that in the event of the members of a Bench differing in opinion on any point, and the members are equally divided, the case shall be referred to the President for hearing on any such point by one or more of the members of the Tribunal, and such point shall be decided according to the opinion of the majority of the members. 11. It is true that sub-section (5) refers to difference of opinion arising amon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision and stated the points for the President to make a reference to a Larger Bench. 10.Undoubtedly, therefore, Members having doubt about the correctness of the earlier decision are certainly entitled to express the same by passing a reasoned order in that regard explaining the doubt which the Bench entertains and the reasons for the same and then to proceed to formulate the exact point which is required to be referred to a Larger Bench. In other words, occasion to refer a matter to a Larger Bench arises in cases where the Members find the view already taken by earlier Bench to be either not correct or there being reason to doubt the correctness of the same and on proper reasoning being disclosed for entertaining such doubt by way of a reasoned order, the matter can certainly be referred to a Larger Bench. 11.Reference of matter to a Larger Bench cannot be merely to seek opinion of a Larger Bench on an issue on which there is no difference of opinion. Besides, the difference of opinion can arise when the issue on which the Tribunal has already expressed its view but the Bench subsequently hearing a matter involving identical issue is unable to agree with the said view. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Apex Court in Paras Laminates' case (supra) and Pradip Chandra Parija's case (supra). [Emphasis supplied] 11. On the aforesaid circumstance, the irresistible conclusion that can be drawn is that the Bench referring the matter to Larger Bench should have examined all the four appeals before it, threadbare on the facts, pleadings of both sides and evidence as well as law applicable thereto, to arrive at its conclusion and stated reason of reference in clear terms having regard to the law as has been explained hereinbefore. Only upon detailed examination of each case, the Division Bench may have occasion to know whether the earlier decision of Tribunal on the same point is an impediment to the Referring Bench to reach to a conclusion different from the earlier decision of a coordinate Bench of Tribunal following rule of judicial discipline so as to make a reference to Larger Bench for answer. Therefore, without touching the merit of the cases as well as plea of limitation raised before us, we have only made effort to explain the law on the subject relating to reference to Larger Bench as well as law relating to the rule of judicial discipline, and precedent and star ..... X X X X Extracts X X X X X X X X Extracts X X X X
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