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TMI Blog2019 (12) TMI 1685X X X X Extracts X X X X X X X X Extracts X X X X ..... bench of CESTAT Chennai in case of IndusInd Bank Ltd. [ 2019 (2) TMI 26 - CESTAT CHENNAI] - Even if for the moment the argument as made in the application for rectification of the order, the final conclusions arrived in the impugned order will not change. The Rectification of Mistake Application filed by the Applicant is disposed of. - HON BLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Abhishek Rastogi, Advocate, for the Appellant Shri Kishori Lal, Principal Commissioner, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This miscellaneous application for rectification of mistake under Section 35C (2) of the Central Excise Act, 1944 has been filed by the Applicant stating that certain errors apparent on record have crept in our order No A/86593/2019 dated 13.09.2019. Thus the said order be recalled and the order rectified accordingly. 2. Para 4, 5, 6 and 7 of the application pointing to the error apparent on record are reproduced below: 4. The Applicant differentiated subvention income from other fee-based incomes to justify its position. The Applicant relied upon various judicial precedents during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of IndusInd Bank Ltd, R B I Regulations and other submissions made by them. The bench has also not provided any reason for not consideration of the same. Thus relying on the various decisions they have sought recall of the order on the following grounds: A. Non consideration of the decision of a coordinate bench is a mistake apparent on record. Honda Siel Power Products Ltd [2008 (221) ELT 11 (SC)] SRF Ltd [2019 (367) ELT 457 (T-Del)] Indian Oil Corporation Ltd [2019 (6) TMI 121 CESTAT Ahmedabad] B. Non consideration of a contention urged amounts to a mistake apparent from record Laxmi Electronics Corporation Ltd [1991 (188) ITR 398 (All)] Jogesh Kumar Bhimsarya [2005 (189) ELT 412 (All)] Atul Ltd [2016 (332) ELT 97 (Guj)] Gurumurthy [2019 (9) TMI 469- CESTAT Chennai] C. Matter is required to be referred for consideration to a larger bench in case of difference in opinion Sub Inspector Rooplal Anr [(2000) 1 SCC 644] Gammon India Ltd [2011 (269) ELT 289 (SC)] Fujifilm India Pvt Ltd [2017 (349) ELT 203 (SC)] Rajasthan Public Service Commission Anr [(2003) 5 SCC 480] Mercedes Benz India Pvt Ltd [2010 (252) ELT 168 (Bom)] D. Decisions relied upon in the Appeal Order are distinguish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bohra vs State of Maharashtra [2005 (2) SCC 673] and in case Philip Jeyasingh Vs The Joint Registrar of Companies [1992 (2) MLJ 309] the principle of per incuriam has been explained and it has been clearly stated that the decision rendered per incuriam cannot be a binding precedent. All the issue raised by the applicant/ appellant in its appeal and during the course of arguments/ written submissions filed have been duly considered by the bench in the impugned order and final verdict pronounced. Such debatable points of law which need to be established by way of long drawn reasoning and arguments cannot be the ground for recall of the order and rectification as has been held by the Apex Court in case of Saurashtra Kutch Stock Exchange Ltd [2008 (320) ELT 320 (SC)] and RDC Concrete (India) P Ltd [2011 (270) ELT 625 (SC)]. Similar view has been expressed by the tribunal in case of Arun Udyog [2009 (236) ELT 194 (T-Ahmd)] and Entremonde Polycoaters Pvt Ltd Nashik [1984 (18) ELT 310 (T)]. Accordingly the application for rectification needs to be dismissed. 5.1 We have considered the impugned order passed by us along with the submissions made by the Applicant in his application and duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns or rubberstamp reasons is not to be equated with a valid decision making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA CIV 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions . (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of Due Process . 5.3 In case of Saheli Leasing Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng judgments. In fact, we are only reiterating what has already been said in several judgments of this Court. 5.4 The above referred decisions laid down the guiding principles for writing a decision. It is settled principle of law, now that the decision has to be well reasoned and passed after consideration of the facts relevant to the record the finding in respect of the issues raised before the authority/ appellate authority. Irrelevant facts and arguments need not be included in the order, and those which are not relevant for arriving at the decision should be avoided. Also decision need not be loaded with unnecessary information and legal knowledge of the author of the judgment. 5.5 The entire application made for the recall of the impugned order is based on the submission that the tribunal has while passing the impugned order not recorded any finding in respect of the decision rendered by co-equal bench of CESTAT Chennai in case of IndusInd Bank Ltd. Even if for the moment the argument as made in the application for rectification of the order we are of the view that the final conclusions arrived by us in the impugned order will not change. The decision of IndusInd Bank have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary view. The decision in case of IndusInd Bank was rendered even without taking note of any of the decisions rendered earlier by the benches of co-equal strength and such a decision cannot be but a decision rendered per incuriam and could not have been followed as binding precedent of the decisions of Hon ble Apex Court referred by the Authorized Representative in case of Central Board of Dawoodi Bohra [2005 (2) SCC 673] and Madras High Court in case of Philip Jeya Singh [1992 (2) MLJ 309]. 5.8 In case of Saurashtra Kutch Stock Exchange, Honble Apex Court has clearly stated the law on the subject of rectification as follows: 37. In our judgment, therefore, a patent, manifest and selfevident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her arguments advanced by the applicant and alleged to have not been considered by us while passing the impugned order, is not supported by the fact and we reproduce the para 5.5 of the order. These arguments have been duly considered and rejected: 5.5 Appellants have strenuously argued before us that the amounts received by them from the vehicle manufacturers/ dealers is nothing but the loss of interest, they would have suffered on account of providing the loans at the reduced rate of interest. They have even submitted the calculations showing that that the amounts received by them are nothing but equivalent to yearly loss of interest against the loan extended, projected on the date of sanction/ disbursement of loan. They have referred to the clarifications issued by the Reserve Bank of India that subvention amount should be taken into account for determination of the interest rate. Hence they argue that since the subvention income is nothing but interest against the advances the same should not be subjected to service tax. We are not in agreement with the submissions made by the appellants. Once we hold that the amounts received by the appellants as subvention charges are conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects such as credit worthiness of the borrower repaying capacity of the borrower, period of loan vis- -vis repaying capacity of the borrower, quality of assets of the borrower etc. When the proposal is made for prepayment of loan or resetting, processing the application is involved. Therefore, there is definitely an element of service in prepayment of loan or resetting of interest. As already discussed earlier, the definition covers any activity in relation to lending. 18.1 Reset charges/prepayment charges charged to the customers by the appellant is in the nature of additional interest only and therefore not liable to Service Tax. 18.2 The appellant has contended that the said charges are calculated taking into consideration the rate of interest and loan amount. Thus, they are in the nature of additional interest and not liable to Service tax. 18.3 It has already been discussed that the prepayment charges are the charges for allowing the facility of prepayment of loan. Similarly, reset charges are the charges levied by the appellant for restructuring the interest rate. The method of calculating the charges has no bearing on the nature of service provided. Just because the charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been rendered per incuriam. In case of Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors [2011 (1) SCC 694] Hon ble Supreme Court explained the law relating to per-incuriam decisions and the precedentiary value of such judgments as follows: 139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that `Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law . ......... In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297- 98, para 578) per incuriam has been elucidated as under: A decision is given per incuriam when the court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe of Section 14(1) and (2) of the Act. 144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under: With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point. 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio. 149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger ..... X X X X Extracts X X X X X X X X Extracts X X X X
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