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TMI Blog2002 (1) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the decision of the Hon'ble Supreme Court in the case of Sun Exports Corporation, Bombay v. Collector of Customs, Bombay Anr. reported in 1997 (93) E.L.T. 641 (S.C.) = (l997) 6 SCC 564 wherein on a similar contention being raised on behalf of the Revenue, the Hon'ble Supreme Court observed and held as under :- "...No doubt it was contended on behalf of the Revenue that the contrary view taken by the Tribunal has been challenged in this Court which was rejected in limine at the admission stage. We do not think that the dismissal at the admission stage can be relied upon as a binding precedent. Even assuming that there are two views possible, it is well settled that one favourable to the assessee in matters of taxation has to be preferred". (C) That in the case of Supreme Court Employees' Welfare Association case; (1989) 4 SCC 187, the Hon'ble Supreme Court in the context of special leave petitions preferred under Article 136 of the Constitution clearly elucidated and laid down the principle of law in this regard as under :- "When Supreme Court gives reasons while dismissing a special leave petition under Article 136 the decision becomes one which attracts 141. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere of the materials covered by Tariff Headings 72.15 and 73.09 and not the "waste and scrap' under sub-heading 7203.00 and excisability could not be attached to these clearances as doing so would be contrary to the decision of the Hon'ble High Court of Kolkata in the case of S.S. Jain v. Union of India as these were not 'waste scrap' at all and what was not 'waste and scrap' could not be subjected to excise duty. (J) That the observation of the learned Assistant Collector of Central Excise in his order in original dt. 16-1-87 that the assessee cleared plate cuttings, angle cutting, round cutting, wire rope cutting, which are evidently scrap and cannot be used as such without re-rol1ing/remelting is factually incorrect and legally unsustainable in view. (K) That in the process of appeal having been decided on broad and general considerations by following the decision in the case of Ashish Steel Private Ltd., the main issue remained unconsidered and undecided. In the interest of justice and considering that the judicial review by a higher Court in hierarchy is possible only on a specific decision by the learned Tribunal on all issues, it is submitted that these to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi Ors. reported in AIR 1978 SC 851. Reference was also made to the Karnataka High Court judgment in the case of Kemwell (P) Ltd. v. U.O.I. [1987 (31) E.L.T. 669 (Kar.)]. Learned Counsel submits that there was denial of natural justice inasmuch as approval of Classification List was done without verification; that a lot of case-laws exist in which it has been held that the Appellate Tribunal has powers to hear the Applications for correcting the mistakes, if any. He submits that Section 35C of the Central Excise Act, 1944 is wide enough, whereunder not only the mistake of fact but also the mistake of law, can be corrected. He also submits that since the Order of the Tribunal, dismissing the appeal against the impugned Order of the authorities below, was upheld by the Hon'ble Supreme Court, that does not make the Order as a binding precedent. He submits that since the issues were not discussed in detail, the Order does not have any precedence value. Learned Counsel, therefore, submits that there were mistakes not only of fact but also of law, and that the Tribunal has power to rectify the same. He, therefore, prays ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Sun Export Corporation v. CC, the Hon'ble Supreme Court [1997 (93) E.L.T. 641 (S.C.) = 1997 (6) SCC 564] held 'the majority view of CEGAT appears to have been influenced by the fact that Civil Appeal filed against an earlier decision of CEGAT which had taken a similar view was dismissed by the Supreme Court at the admission stage. Dismissal at the admission stage cannot be relied upon as a binding precedent. Even assuming that there were two views possible, the one favourable to the assessee in matters of taxation has to be preferred. Moreover, presumably the amendment to exemption Notification No. 234/82 by a subsequent Notification No. 6/84, dated 15-2-84 was not before Supreme Court for consideration. The majority view had also failed to take note of the subsequent amendment to the main exemption notification as well as the effect of the amendment as notified by the Bombay High Court in Glindia Ltd. case. 6.5.The learned Counsel referred to the case of Supreme Court Employees Welfare Association v. U.O.I. [1989 (4) SCC 564] and Apex Court's decision in the case of Smt. Pujari Bai v. Madan Gopal (dead) LRs. viz. Smt. Lajwant Others, and submitted that the Apex Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. Since the case of Kunhayammed is of a later date, therefore, it has to be followed and has been so followed by the Tribunal and hence the ratio of Sun Exports case does not apply to the present case. 10.In the case of Supreme Court Employees Welfare Association cited by the Counsel, it was a case of Writ Petition under Article 226 and not a case in appeal and hence facts in the two cases are different. Moreover, the case is of July 24, 1989 whereas the case relied upon by the Tribunal was decided on 19-7-2000. This is equally applicable to the case of Pujari Bai which was decided on 12-7-1989. 11.In so far as the decision in the case of G. Balakrishna and Brothers (P) Ltd. is concerned, we note that in that case, the Tribunal had not followed the decision of the Apex Court, whereas in the present case, the Tribunal had followed the Supreme Court decision. 12.In the case of Kemwell Pvt. Ltd., it was a case of Approval of Classification List. In the instant case, the question of approval of Classification List is not mentioned in the Application for Rectification of mistake, however, the Counsel had made certain submissions. But, whether it was taken up in the appeal memos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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