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TMI Blog2022 (9) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and exempted from Sales Tax under Section 8 of the Andhra Pradesh General Sales Tax Act 1957, whether gutka could be taxed by the State of Andhra Pradesh. The Court found that gutka being tobacco, covered by an Entry in the First Schedule to the ADE Act and liable to be taxed under the ADE Act, it was covered by the exemption in Section 8 of the Andhra Pradesh General Sales Tax Act . The State Act could not have been amended to tax gutka . In COMMISSIONER OF SALES TAX, UP. VERSUS AGRA BELTING WORKS, AGRA [1987 (4) TMI 82 - SUPREME COURT] , the majority of the threeJudge Bench of this Court, by ratio of 2:1, inter alia, held When power for both the operations vests in the State and the intention to levy the tax is clear we see no justification for not giving effect to the second notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified under Section 3A of the Act. There is no conflict between the Kothari Products line of cases and the Agra Belting line of cases. The Kothari Products line of cases was on the question of whether tobacco or other goods specified in the First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the binding nature of the Judgment. X X X X Extracts X X X X X X X X Extracts X X X X ..... se consisted of five Judges, one of whom, Shah, J., dissented from that proposition. The authority of the case may be open to question, since there had been a previous decision of a Full Bench of this Court of four Judges in Queen Empress v. Mugappa Bin Ningapa [Queen Empress v. Mugappa Bin Ningapa, ILR (1893) 18 Bom 377] , which had reached a different conclusion. Apparently it was considered that five Judges, by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of coordinate jurisdiction. There seems to be very little authority on the powers and constitution of a Full Bench. There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely because the later Bench consists of more Judges than the earlier. If that were the rule, it would mean that a Bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a Bench of six Judges, though all the Judges were o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the position if only 4 learned Judges in Pradeep Kumar Biswas [Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : 2002 SCC (L&S) 633] had decided to overrule Sabhajit Tewary [Sabhajit Tewary v. Union of India, (1975) 1 SCC 485 : 1975 SCC (L&S) 99] while the remaining 3 learned Judges found no error in that decision? Would a decision rendered unanimously by a Bench of 5 learned Judges stand overruled by the decision of 4 learned Judges in a subsequent Bench of 7 learned Judges? Pradeep Kumar Biswas [Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : 2002 SCC (L&S) 633] presents a rather anomalous situation which needs to be addressed by appropriate rules of procedure. If this anomaly is perpetuated then the unanimous decision of 9 learned Judges in Third Judges case [Special Reference No. 1 of 1998, In re, (1998) 7 SCC 739] can be overruled (as sought by the learned Attorney General) by 6 learned Judges in a Bench of 11 learned Judges, with 5 of them taking a different view, bringing the total tally of Judges having one view to 14 and having another view to 6, with the view of the 6 learned Judges being taken as the law!" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taxes, except the proceeds attributable to Union Territories, to the States. The distribution of the proceeds of the additional duties broadly follows the pattern recommended by the Second Finance Commission. Provision has been made that the States which levy a tax on the sale or purchase of these commodities after 1.4.1958 do not participate in the distribution of the net proceeds. Provision is also being made in the Bill for including these three goods in the category of goods declared to be of special importance in interState trade or commerce so that, following the imposition of uniform duties of excise on them, the rates of sales tax if levied by any State are subject from 1.4.1958 to the restrictions in Section 15 of the Central Sales Tax Act, 1956." 6. In Mahalakshmi Oil Mills v. State of A.P. (1989) 1 SCC 164, this Court, held: " 5 .. In short, the object of the Act was to substitute additional duties of excise in place of sales tax so far as these goods were concerned. Since the State legislatures were at liberty, if they wished, to levy taxes on the sale or purchase of these commodities, the Act provided that the additional excise duties will be distributed only amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala (2011) 15 SCC 762, this Court took the view that cotton based tarpaulin was exempted from Sales Tax under the Kerala General Sales Tax Act, 1963, since it was exigible to Additional Excise Duty under the First Schedule of the ADE Act. 12. In Agra Belting Works (supra), the question was whether any class of goods - cotton fabrics of all kinds, to be specific, exempted from Sales Tax Act under section 4 of the Uttar Pradesh Sales Tax Act, 1948, would be exigible to Sales Tax by virtue of a subsequent Notification under Section 3A of the said Act, specifying the rate of sales tax in respect of an item of the class of goods exempted under Section 4, without withdrawing the earlier Notification under Section 4. While the majority held that a Notification of recall of exemption was not a condition precedent for imposition of tax, by a valid Notification under Section 3A, B.C.Ray, J. dissented with the view of the majority. 13. In Agra Belting Works (supra), the majority of the threeJudge Bench of this Court, by ratio of 2:1, inter alia, held: " 6. As has been pointed out above, Section 3 is the charging provision; Section 3A authorises variation of the rate of tax and Section 4 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made under Section 3A of the Sales Tax Act. I am unable to subscribe to the view that since the notification under Section 3A of the U.P. Sales Tax Act has been made subsequent to the notification issued under Section 4 of the said Act, the subsequent notification under Section 3A will prevail over the general exemption granted under Section 4 of the said Act. In my considered opinion the reasonings and conclusions arrived at by the High Court are unexceptionable." 15. In Sales Tax Officer, SectorIX, Kanpur vs. Dealing Dairy Products and Anr. (1994) Supp. 2 SCC 639, a two Judge Bench of this Court followed the majority decision in Agra Belting Works (supra), and held that, even though the State of Uttar Pradesh had been issuing notifications under Section 4 of the U.P. Sales Tax Act 1948, exempting milk and milk products from levy of sales tax, a later notification under Section 3A notifying the rate of tax on icecream amongst other items, withdrew the exemption in respect of all kinds of icecream and made the sale of icecream exigible to sales tax at the rate specified in the Notification under Section 3A. 16. In State of Bihar and Others v. Krishna Kumar Kabra and Another (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate justification has to be forthcoming by the State or the agency concerned. However, there is unanimity in the conclusion by all seven Judges that an outer limit for reservation should be 50%. Undoubtedly, the other two Judges, Ratnavel Pandian and P.B. Sawant, JJ. indicated that there is no general rule of 50% limit on reservation. In these circumstances, given the general common agreement about the existence of an outer limit i.e. 50%, the petitioner's argument about the incoherence or uncertainty about the existence of the rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments (the dissenting judgments of K. Subba Rao, in T. Devadasan v. Union of India [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179] , the judgments of S.M. Fazal Ali and Krishna Iyer, JJ. in State of Kerala v. N.M. Thomas [State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227] and the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka [K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714 : 1985 Supp (1) SCR 352] ) is not an argument compelling a review or reconsideration of Indra Sawhn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verall headcount) supporting a particular rule in a particular case cannot detract from the legitimacy of a rule enunciated by a later, larger Bench, such as the nineJudge Bench ruling in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] ." 19. The view of Bhat, J. was expressly concurred by Rao, J. (Para 196) and Gupta, J. (Para 227). There was no dissent to the view. In view of Article 145(5) of the Constitution of India concurrence of a majority of the judges at the hearing will be considered as a judgment or opinion of the Court. It is settled that the majority decision of a Bench of larger strength would prevail over the decision of a Bench of lesser strength, irrespective of the number of Judges constituting the majority. 20. In view of the fiveJudge Bench decision in Dr. Jaishri Laxman Rao (supra), it is not necessary for this Court to answer the question. [INDIRA BANERJEE] ………..……………………………… J. [SURYA KANT] ………..……………………………&h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay High Court in the successor Gujarat High Court but an ancillary question was considered in respect of numerical strength of the Bench as well. Though there is divergence of opinion amongst the judges of the Court, but the minority view was relevant for the second question arising for consideration. The minority view is expressed by N.M. Miabhoy J and P.N.Bhagwati J. We are in agreement with the said view. The order passed by learned Hon'ble Mr. Justice N.M. Miabhoy J reads thus: "44. ……………The principles which guided the latter Court in the matter of judicial precedents have been set out by that Court in (1944) 1 KB 718. All Division Benches considered themselves to be bound by the judicial precedents created by Full Benches not only on the ground of judicial comity but also on the ground that a Full Bench consisted of more number of Judges than a Division Bench. If a judicial precedent created by a Full Bench required to be reconsidered, then, the usual practice was to refer the matter to a Full Bench consisting of more number of Judges than the number which constituted the former Full Bench whose decision was sought to be revised. The prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apparently it was considered that five Judges by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of coordinate jurisdiction. There seems to be very little authority on the powers and constitution of a Full Bench.-There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can Overrule an earlier Full Bench, merely because the later bench consists of more Judges than the earlier. If that were the rule, it would mean that a Bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a Bench of six Judges, though all the Judges were of co-ordinate jurisdiction." .......................... It was the anomaly of this situation which prompted Beaumont, C.J., to make the aforesaid observations. This anomaly is, however, inherent in the principle of superiority of numerical strength and should not stand in the way of acceptance of that principle in its application to Full Benches of the High Court . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, we would like to sum up the legal position in the following terms: (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3)..........................." G. The conclusion (1) is that a decision delivered by a Bench of largest strength is binding on any subsequent Bench of lesser or coequal strength. It is the strength of the Bench and not number of Judges who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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