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TMI Blog2020 (2) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... of Northern Mineral did refer to the dictionary meaning and various discussion on plant, growth, regulator and plant, growth promoter to cullout fine distinction between the two. But the research on this aspect incorporated in para 7.3 was bearing in mind the product Dhanzyme and its ingredients, applicability, methodology of its application and usage. In other words, it can well be said that the discussion and research was producentic viz. Dhanzyme . It is required to be noted that the decision of the Court and the tribunals are to be read not as textbook, but required to be read and applied in light of the facts prevalent thereafter. Bearing the aforesaid sentence of the tribunal occurring in the paragraph, which this Bench has found to be uncalled for, unwarranted and not appropriate. The discussion in respect of the product in question based upon the prima facie opinion of the tribunal requiring the tribunal to refer the matter to Larger Bench cannot be said to be so prejudicial to the petitioner to call for any interference - The Court hasten to add here that the Court is also of the view that the learned counsel for the respondent is not wholly unjustified in pressing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been preferred under Article 265 read with Article 226 of the Constitution of India with following prayers: (A) Your Lordships be pleased to issue a Writ of certiorari or any other appropriate writ, order or direction quashing and setting aside Interim Order No. 7172/ 2018 dated 29th October 2018 passed by the Customs, Excise Service Tax Appellate Tribunal, Ahmedabad as per Annexure- P to this petition; (B) That this Honourable Court be pleased to direct the Hon'ble Tribunal to decide the issue as per the law settled by the Hon'ble Supreme Court and various judgments of the Hon'ble Tribunal and taken in keeping with the circulars issued by the Board. (C) Pending admission, final hearing and disposal of this petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned order No. 7172/ 2018 dated 29th October 2018 passed by the Customs, Excise Service Tax Appellate Tribunal, Ahmedabad as per Annexure-P to this petition. (D) Any other further relief as may be deemed fit in the facts and circumstances of the case please be granted; Thus, what is essentially under challenge in this petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter Heading 3101 even for collection of CVD, vide Order In Appeal No.195/2003 dated 30th December 2003. 2.5 It is contended in the petition that the Deputy Commissioner of Central Excise, Ankleshwar had also finalised the provisional assessment vide letter dated 3rd January 2004 allowing to remove the product, in question, under Chapter Heading 3101 of CET, 1985 in terms of the OIA passed by the Commissioner of Customs (A). In terms of the above facts and since there was no deeming fiction in Chapter 31 about manufacture, the petitioner was removing the said product without payment of duty and also giving effect of removal of the said product in the monthly returns for the period involved. The monthly returns were accepted by the jurisdictional Central Excise office without any objection. This issue in the context of classification of the product as a fertilizer has been an issue of dispute between the Assessee and the Department. 2.6 The petitioners contended that while conducting the audit in the year 2008, the audit party took objection regarding classification of the product on the basis of the leaflet/label of the product and without any substantive material and base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal position. The Commissioner of Central Excise, Surat-II, however did not take into account any vital and undisputable facts and the legal points advocated in the petitioner's reply and confirmed the demand of duty totally ₹ 7,89,29,341/( the amount involved in all the SCNs) under sub section (1) of Section 11A of the Central Excise Act, 1944; ordered to recover interest under Section 11AB/11AA of the Central Excise Act, 1944; imposed penalty totally ₹ 5,46,38,295/under Section 11AC of the CEA, 1944 and under Rule 25 of the CER, 2002; vide OIO No.65 to 69/Commr./SuratII/ 2012. The following periodical Show Cause Notices were also issued. Sr. No. SCN No. Period involved Amount involved 1 V (Ch28, 29, 31 38)351/ Div.III/ADC/1213 dated 21092012 October 2011 to March 2012 4141032 2 V (Ch38) 321/ Dem/2012 dated 16042013 April to September 2012 4527851 3 V (Ch28) 342/ Dem/2013 dated 03092013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoning of the said judgment dated 29th October 2018 being interim order no.7172 of 2018 and the same is impugned in this petition. 3. Learned counsel for the petitioners submitted that it cannot be open to any authority in the country to reopen the issue concluded by the Apex Court. It is further submitted that there is a primary distinction between SLP and Tax Appeal and this distinction is well established in law. The dismissal of SLP in limine may or may not lead to a binding precedent of the Apex Court, but when tax appeal is dismissed on merits, it would mean that the Apex Court endorsed in full the judgment on merits passed by the lower Court. It submitted that it is quite absurd to reopen the issue settled by the Apex Court. 4. Learned counsel for the petitioners submitted that while considering the SLP, the Apex Court exercises discretionary jurisdiction and may not exercise the same even if it may or may not agree with the lower Court on merits. It is submitted that though the point in question is not considered to be of substantial relevance, the appeal is a statutory right. The rejection or dismissal of appeal by the Apex Court clearly lends the stamp of apex C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered as per the Department's own circular. It is also reiterated that there are specific well known Plant Growth Regulators and if the product does not fall in the said list, they ought not to be classified as such. It is submitted that the circular also provide that so long as the active ingredient contained in the product is nitrogen, phosphorus or potassium, then the product must be classified as fertilizer. It is submitted that Chapter No.6 to Chapter no.31 is required to be reproduced hereunder. For the purposes of Heading3105, the term other fertilizers applies only to the products of the kind used as fertilizers and containing, as an essential constituent at least one of the fertilizing elements nitrogen, phosphorus or potassium . Thus, the very basis of the inquiry in all such cases is whether the product in question contains nitrogen, phosphorus or potassium or whether it contains any other compound which is a non-plant growth regulator. Needless to state, the burden of proof lies on the Department. The facts of this case further demonstrate that the test has been done by the Department themselves. The test reports demonstrate beyond a doubt that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. are fertilizers. Under Chapter31 of the Central Excise Tariff, more specifically, Chapter Note6 thereof, once it is found that at least one of the essential elements i.e. nitrogen phosphorous or potassium is the essential constituent, then the product must be classified as a fertilizer (circular at page252). 4. Thus, not only was the issue covered by the Hon'ble Supreme Court dismissal of the Department's appeal on merits, but also by the circular issued by the Board. 5. It is settled law that the circulars issued by the Board are binding. (1) 2018 (359) E.L.T. Page433 (2) 2014 (301) E.L.T. Page273 (3) 2008 (231) E.L.T. Page22 6. The test reports carried out by the Department themselves on the product demonstrate beyond the doubt that the only and main ingredient in the product is nitrogen (NVR=Non Value Residue) and phosphorous at 12.9% and 6.8%. It also shows that there are not plant hormones and that the product is only a mixture of proteins and amino acids (Page211). 7. In order to placing beyond any doubt, the appellants filed Misc. Application before the Hon'ble Tribunal (page258) to bring on record all the plant growth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of repacking. On page280, there is a reference to the fact that the produce is primarily constitute of amino acids. On page280, there is a reference to the fact that the product is internationally recognized as a fertilizer. Now, in para5 on page284, the Hon'ble Tribunal admits that the product in question only has various amino acids. From the bottom of page288, and more importantly, in middle of page290 and it is finally found on page292, it is found that the Hon'ble Tribunal in Northern Minerals was wrong when it held that Plant Growth Regulators may not perform only one of the functions either retire or grow or inhibit. The Hon'ble Apex Court does not mean approval of all grounds and in light thereof, on page293, the Hon'ble Tribunal refers the matter to the larger Bench. 13. A perusal of the judgment in the case of Northern Minerals, in para4, the product in that case also has nutrients and amino acids present in DHANZYME promotes growth of the plant as a whole and does not play any restrictive role like Plant Growth Regulators. DHANZYME was rich in amino acids and hence, classifiable only as fertilizer. The said paragraph also deals with the aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.1 This view is specifically taken in the judgments reported at (I) (2000) 5 SCC 373 (Paras8 and 9), (ii) 2010 (256) E.L.t. Page161 (SC) (Para32). 18. A reference may be made to the judgment of the Hon'ble Allahabad High Court reported at 2005 (179) E.L.T. 572 (Paras22 24). It has been specifically held by His Lordship Justice Katju that dismissal of an S.L.P. without giving reasons does not amount to merger of the lower Court's order, however, a dismissal of an appeal under Section 35L (of the Central Excise Act) by the Hon'ble Supreme Court would amount to a merger even if the Hon'ble Supreme Court does not give reasons. Section 35L provides a regular form of appeal if such an appeal is dismissed with or without reasons, the judgment of the Hon'ble Supreme Court dismissing the appeal is binding on the Hon'ble High Court also. 19. A reference in this regard may also be made tot he decision of the Hon'ble Supreme Court in the case of Kanaklaxmi Finance, 1991 (55) E.L.T. 433 (Paras4 and 8) wherein, the Hon'ble Supreme Court is ailed to set aside strictures passed against the Authorities which failed to follow binding decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fundamental issue is not on classification. It is submitted, therefore, that even a preliminary issue has been covered by decisions of this very Hon'ble High Court. 11. Learned counsel for the petitioner relied on the following judgments. (1) In case of V. M. Salgaocar Bros. Pvt. Ltd. Vs. Commissioner of Income Tax, Karnataka at Banglore, reported in (2000) 5 Supreme Court Cases 373. (2) In case of Pernod Ricard India (P) Ltd. Vs. Commr. of Cus., ICD, Tughlakabad, reported in 2010 (256) E.L.T. 161 (S.C.). (3) In case of Medley Pharmaceuticals Ltd., Vs. Commr. of C. Ex., Cus., Daman reported in 2011 (263) E.L.T. 641 (S.C.). (4) In case of Assistant Collector of Central Excise Vs. Dunlop India Ltd., reported in AIR 1985 SC 330. (5) In case of Caryaire Equipments India Ltd., Vs. Ministry of Finance, reported in 2005 (179) E.L.T. 522 (All.). (6) In case of Ruchi Soya Industries Ltd., Vs. Union of India, reported in 2014 (307) E.L.T. 852 (Guj.). (7) In case of Anil Products Limited Vs. Commissioner of C. Ex. AhmedabadII, reported in 2010 (257) E.L.T. (Guj.). 12. As against the aforesaid submission of the learned cousnel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 10L is a fertilizer; that the petitioner was asked to submit the relevant documents in support of their claim that Siapton 10L is classifiable as Fertilizer under chapter 31, but they had not responded in the matter. 17. It is submitted that the description given in the said technical documents / papers indicated that Siapton 10L is a plant 'bio stimulant', further a plant 'bio stimulant' is a plant growth stimulant. It is further submitted that Siapton 10L appears to be a plant growth regulator which appears to be covered under chapter heading 3808.93 of the Central Excise Tariff Act, 1985 (Herbicides, antisprouting products and plant growth regulators and similar products) and the said product appears to be falling within subheading No.3808 93 90 which attracts Central Excise duty at the appropriate rate. 18. It is submitted that sample of Siapton 10L was drawn on 17th November 2009 and was forwarded to the Chemical Examiner, Central Excise Customs Laboratory, Vadodara to determine the correct classification of the product. The Chemical Examiner, Central Excise Customs Laboratory, Vadodara vide test report dated 3rd September 2010 submitted the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax, Surat II Commissionerate, the petitioner filed appeals before Hon'ble CESTAT, Ahmedabad. The CESTAT vide their interim order no.7172/ 2018 dated 24th October 2018 has disagreed with the findings/observations of the Hon'ble Tribunal, Delhi in the case of Northern Minerals Limited Vs. CCE as reported in 2001 (131) ELT 355 (Tri. Del), therefore the matter has been referred to Larger Bench for answering the following questions of law (at para 6 of interim order): It is necessary for a plant growth promoter to be able to simultaneously inhibit growth or otherwise modify (apart from promotion) plant process, to qualify as plant growth regulator under heading 3808 of Central Excise Tariff Act, 1985. OR So long as it promotes by modifying life processes of a plant it qualifies as plant growth regulator under heading 3808 of Central Excise Tariff Act, 1985. 22. It is submitted that being aggrieved with interim order of the Hon'ble CESTAT, Ahmedabad the petitioner has filed instant Special Civil Application before the Hon'ble High Court under Article 226 of the Constitution of India. 23. It is submitted that the following facts and legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. Section 35G(1) An appeal shall lie to the High Court from every order passed by an appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. 27. It is submitted that as per the provisions of Section 35 L (1) (b) of the Central Excise Act, 1944 an appeal against an order of the Tribunal relating to classification and valuation matters, shall lie to the Hon'ble Supreme Court. Section 35L of the Central Excise Act, 1944 is reproduced hereunder for ease of reference. Section 35 L (1) An appeal shall lie to the Supreme Court from (a) any judgment of the High Court delivered (i) in an appeal made under Section 35G; or (ii) on a reference made under Section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under Section 35H, in any case which, on its own motion or an oral application made by or on behalf of the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the manufacturers are correct in their stand, such education cess would be excluded. In any case, it would have a direct bearing on the rate at which manufacturers should pay the excise duty on their clearance in the DTA from EOU Units. In that view of the matter, we are of the opinion that the respondents' preliminary objection is required to be upheld. All Tax Appeals are dismissed. In view of above, any order determining a question having relation to the rate of duty of excise is not maintainable before the High Court as in the case of instant petition. 29. It is submitted that the petitioner's allegation that the tribunal to reopen an issue settled by the Hon'ble Apex Court is contrary to the facts. It is further submitted that the product under dispute in case of Northern Mineral Vs. Commissioner of Central Excise as reported in 2001 (131) ELT 355 (Tri. Del) was Dhanzyme . The dispute of classification of the product under the present case is Siapton 10 L . Further, the contents of the product Dhanzyme and Siapton 10 L are different. It is also submitted that the Division Bench has referred the matter to Larger Bench to answer the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o larger bench of tribunal for proper classification of the product. 31. It is submitted that as discussed above, the Hon'ble Tribunal has given a clear finding or reason for why don't they agree with the findings of the tribunal in case of Northern Minerals Ltd., Vs. CCE as reported in 2001 (131) ELT 355 (Tri. Del). Further, the Chemical Examiner, Central Excise Customs Laboratory, Vadodara vide test report dated 3rd September 2010 unambiguously recorded as under : The sample is other than Mineral, Chemical and Organic Fertilizer (Animal/vegetable). It is not labelled as fertilizer. This type of product does not find mentioned under fertilizer (Control Order No.1985 as fertilizers). The sample is mixture of proteins and Amino Acids which regulates the plant growth. The sample under reference can be considered as plant growth regulator. It is further submitted that the petitioner has not challenged the findings of the test report of their product. Therefore, the tribunal rightly referred the issue to Larger Bench to give answer to the question put before the Bench. Therefore, it appears that no interference of this Hon'ble Court is required at this junc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of equality of the civil rights of all persons within the territories of India. It is a basic principle of republicanism. The phrase equal protection of laws is adopted from the Fourteenth Amendment to the U.S. Constitution. The right conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Since the State in exercise of its governmental power, has of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws. It is however, required that the classification must satisfy two conditions, namely, (i) it is founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational relation to the object sought to be achieved by the Act. It is not the requirement that the classification should be scientifically perfect or logically complete. Classification would be justified if it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Gujarat in the Writ Petition filed by the appellant to assail the referring order has been brought to our notice. The writ petition is to come up for final hearing on 22nd April 2019. In such circumstances, it is considered appropriate to defer the hearing as the referring order has been assailed in the Writ petition. The matter is, accordingly, adjourned to a date to be notified by the registry. 40. It is submitted that as per the provisions of Section 35G of the Central Excise Act, 1944 an appeal against an order of the Tribunal shall be filed before the High Court except the issue or dispute pertains to valuation or classification of the product. Section 35G(1) of the Central Excise Act, 1944 is reproduced hereunder for ready reference. Section 35G (1) An appeal shall lie to the High Court from every order passed by an appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to the question whether the manufacturers are required to pay education cess on the computation of the customs duty and the CVD on which, once they have already paid such eduction cess. The tribunal ruled in favour of the manufactures and rejected the Revenue's case that such education cess was required to be paid once again. To our mind, such decision of the tribunal would certainly be covered under the expression the order determining a question having relation to the rate of duty of excise . If the department is correct in its stand, the manufacturers would have to pay excise duty at a rate higher than what they have been paying. In other words, computation of excise duty would have to include component of education cess. On the other hand, if the manufacturers are correct in their stand, such education cess would be excluded. In any case, it would have a direct bearing on the rate at which manufacturers should pay the excise duty on their clearance in the DTA from EOU Units. In that view of the matter, we are of the opinion that the respondents' preliminary objection is required to be upheld. All Tax Appeals are dismissed. 43. Learned advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court under the theory of merger and hence, the same would be binding upon all the concerned. 48. Learned counsel for the petitioner submitted that the CESTAT, Ahmedabad therefore ought not to have passed the impugned order referring the matter to the tribunal and making artificial distinction for not agreeing with the observation of Delhi Bench and therefore, to that extent the order impugned deserves to be quashed and set aside. 49. Learned counsel for the respondents resisted the petition by inviting Court's attention to the detailed reply filed on behalf of the revenue to justify that the distinction drawn by the tribunal in the order impugned needs no interference by this Court as no harm is caused to the petitioners in any manner. The tribunal has merely made reference to the Larger Bench and pursuant to the order thereupon did met once but not heard the matter in view of the pendency of present petition and deferred its further hearing and therefore, this Court may not interfere therewith. The provision of Central Excise cited for indicating that how and in what manner the High Court has a limited jurisdiction and why the High Court should not embark upon exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter 31 and not under Chapter 38 and such classification had the approval of the Department. It was without applying his mind to this aspect of the matter that the Commissioner placed the appellants' products under CSH 3808.20. Counsel further submitted that it was the Department's burden to show that the appellants' product was different from the bulk product supplied by Samruddhi and Wockhardt and had resulted from a manufacturing activity, but the department did not successfully discharge that burden. There was not even any attempt on the part of the department to rebut the appellants' contention that the department had never proposed to revise the classification of Biozyme manufactured by Samruddhi and Wockhardt and supplied by them in bulk quantities under their own brand names to the appellants as biofertiliser under CSH 3101.00. Referring to the classification, by the adjudicating authority of Dhanzyme as a plant growth regulator under CSH 3808.20, ld. Advocate submitted that the appellant's product contained nutrients which were characteristic of fertilizers, but a plant growth regulator could not have any nutrient in it. Ld. Counsel referred to scie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be extracted and reproduced hereunder. 7.1 We have carefully examined the submissions. We are primarily concerned with the classification of the appellants goods branded Dhanzyme . The goods cleared by the appellants under the said brand name were in two forms, one tin liquid form and the other in granular form. The liquid product was admittedly smaller packings of Biozyme . a biofertiliser supplied in bulk quantities to the appellantcompany by M/s. Samruddhi and We Wockhardt under the brand names Sampdazyme and Wokazim respectively. It is the appellant s consistent claim that the said bulk products branded Sampdazyme and Wokezim were classified by the manufacturers thereof under CSH 3101.00 and that the Department had never proposed to revise such classification. We note that this claim of the appellants has not been rebutted by the department. What the appellants did was simply to repack the bulk products of Sampdazyme and Wokazim brand received from Samruddhi and Wockhardt into smaller packings of 1000 ml, 500 ml, 180 ml, 90 ml and 30 ml and sell the same under their own brand name Dhanzyme . in the absence of any Chapter Note in Chapter 31 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes various activities of the plants from vegetative to reproductive stages. (iii) It enhances photosynthesis in plants and also helps in Cell growth. (iv) It does not appear to increase the fertility of soil as is in the case of fertilizers. It works directly on the plants. (v) Significantly it is not covered as a fertilizer in Fertilizer Control Order. 1985. where the fertilizers are covered. it is. therefore, obvious that statute does not recognise Dhanzyme as a fertilizer . The Commissioner appears to have held plant growth promoter to be synonymous with plant growth regulator. He has fallen into a patent error here. A plant growth promoter will only promote growth of the plant and will not inhibit it. On the other hand. a plant growth regulator can inhibit, promote or otherwise alter physiological processes in plants. The relevant HSN Note is clear to this effect. KirkOthmer Encyclopaedia of Chemical Technology (3rd Edition ~ Volume 18) introduces PGRs as follows: Plantgrowth regulators, other than nutrients, usually are organic compounds. They are either natural or synthetic compounds and are applied directly to a plant to alter its life proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10000. Whether supplied by the Biozyme manufacturers or formulated by the appellants themselves from the imported seaweed extract powder, the 'Dhanzyme' liquid used for spray over Bentonite clay granules had a seaweed origin. 7.4 In the case of Leeds Kem [2000 (41) RLT 674], we had occasion to examine the question whether seaweed was a biofertilizer or not. In that case, after consulting technical authorities on fertilizers, we held that 'plantozyme' manufactured mainly from seaweed extract was a biofertilizer classifiable under Heading 31.01. We also held that the mere presence of small amounts of cytokinins in a biofertilizer would not detract from the latter's character of biofertilizer. It was further observed. in that case, that a product to be classified as plant growth regulator under CH 38.08 must be a separate chemically defined compound. on which basis we found that the decision in Unique Farmaid (supra) holding 'floramin' to be a PGR did not help the Revenue in Leeds Kem's case. We may. contextually. observe that the DR s reliance on the decision in Northern Minerals Pvt Ltd. v. CCE 1998 102 E.L.T. 182 wherein 4.5% aqueous solution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order itself and thereafter the bench has framed the question for reference. 53. The Court is of the view that the observation of the tribunal in its order dated 29th October 2018, reproduced hereinbelow, may not be appropriate and the same deserves to be disapproved so far as its reference to the Apex Court, the same is reproduced as under : ..... It appears that most PGR perform only one function of either retarding growth or inhibiting growth or, deflolianting or stimulating growth. Thus, the observation of Tribunal in the said case appears to be misplaced. The said decision has been approved by the Hon'ble Apex Court, however, the approval of Hon'ble Apex Court does not mean approval of all grounds of the order. In the said case, the product was being applied to soil as against the fact that PGRs are not applied to soil but directly to plant. A fact recorded in the said order, in Para 7.3, reproduced above. Thus, in the said case the facts were different on a crucial issue. (emphasis supplied) The highlighted portion in the extracted portion of the order cannot be countenanced and deserves deprecation as the same was unwarranted. The question ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43 observed that while applying the decision to a case, the Court must carefully try to ascertain the true positive on pronouncement of law laid down in the decision in respect of the facts prevalent there. The ratio decidendi needs to be culled out and applied. The said principle is elaborately discussed by the Court in the decision in case of Krishnakumar Vs. Union of India, reported in (1990) 4 SCC 207 and (1997) 6 SCC 564. It is also required to be noted that the precedent and ratio decidendi of that precedent will have to be applied without further embellishment or expansion by the Court of law. The Apex Court has in case of Devindar Singh Vs. State of Punjab, reported in (2010) 13 SCC page 88 held that the precedent is what is decided by the Court and not what is deducible from the judgment and decision of the Court. Therefore, the ratio decidendi of the decision is to be applied and what can be deduced therefrom cannot be treated as precedent for it being pending under Article 141 of the Constitution of India. The Apex Court has also gone to the extent of saying that the judgments are not read as Euclid's theorems as could be seen from (2010) 13 SCC 255. Bearing this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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