Whether Tribunal bound to follow the precedent decision given in case of appellant for subsequent period on identical facts?

PJ/Case Laws/2012-13/1380

Case: VIVILON TEXTILES INDUSRIES LTD. V/S C. EX., RAIGAD

Citation: 2012 (286) E.L.T. 225 (Tri. – Mumbai)

Brief Facts: - The appellants, Vivilon Textiles Industries Ltd. are submitting that in their own case their appeals were allowed by this Tribunal. Hence, if this Tribunal is relying on the earlier decision of the Tribunal for the subsequent period in the appellants own case, the appellants shall not press for miscellaneous application.
One miscellaneous application is filed by Revenue wherein a prayer has been made that there are contrary decisions on the issue, hence the matter be referred to the Larger Bench. On perusal of the said application, it is find that the said application has been filed by the Revenue on 3.5.2006 and this Tribunal has passed the order in appellants own case on 22-4-2008. Hence, the said application becomes in fructuous and is not relevant in present Circumstances and thus the application was rejected.

Appellant’s Contention: - The appellant contended that the issues of this case has been considered by this Tribunal in their own case for subsequent period and this Tribunal vide order no. A/409/2008/WZB/CII-EB dated 22-4-2008 has decided in favour of the appellants. Hence these decisions are binding on this Tribunal. To support this contention they relied on the decision of Mercedes Benz India P. Ltd. v. UOI, 2010 (252) E.L.T. 168 (Bom.).
They further submitted that the department has challenged only one issue before the Hon’ble High Court of Bombay that whether the CESTAT was justified in ruling in Central Excise duty need not be discharge by the 100% EOU in respect of clearances made to the DTA purchasers and Excise is to be discharged to DTA on such clearances. But no stay has been granted by the Hon’ble High Court against the order passed by this Tribunal. Hence the order passed by this Tribunal is squarely applicable to the present case

Respondent’s Contention: - The respondent argued that with regard to the issue relating to supply of DTA against the payment in foreign exchange it was held by this Tribunal vide order dated 3-9- 2007 because the similar issue has been decided by the Hon'ble Supreme Court in the case of Virlon Textile Mills, 2007 (211) E.L.T. 353 (S.C.) as proposed by the appellants. He further submitted that this issue has been decided by this Tribunal on relying on decision of Virlon Textile Mills (supra) which was passed in concession and same cannot be considered to be binding precedent. To support this contention, Id. DR relied on decision of Supreme Court in Civil No. 1020/05 in the case of NoidaDistrict Primary SchoolCouncil v. Shristidhar Biswas and Ors. wherein it was held that it is clear that any order passed on concession does not lay down the law and it cannot be followed as a precedent. He further relied on Munilal Mehra v. CC, 2008 (226) E.L.T. 102 (T.- Mum.). On the second issue, they submitted that the Revenue has challenged the order dated 22-4-2008 before the Hon'ble High Court of Bombay and same has been admitted. Hence, the same cannot be relied upon by this Tribunal. To support this contention, he relied on the decision of the Supreme Court in the case of UOI v. West Coast Paper Mills Ltd., 2004 (164) E.L.T. 375 (S.C.).
He finally submitted that this Tribunal in earlier decision in the appellants own case cannot be relied upon in view of the above submissions and the matter be heard afresh on merits.

Reasoning of Judgment: - The Hon’ble Tribunal held that the in the appellants own case for subsequent period on the identical facts and issue, this Tribunal has passed the order in favour of the appellants. Now the only question arose is that whether the order, passed by this Tribunal in appellants own case on identical facts and issues is binding or not. They do not agree that the submissions of the respondent that earlier order has been passed in concession as they observe that in the said order, the respondent himself has admitted that appellants are entitled for the benefit of Notification 2/95 relying on the decision of Virlon Textile Mills (supra) and that part of the order has not been challenged by the department, the same has attained finality. Hence the issue in the appellants own case cannot be raised now.
Further, they find that it is an admitted fact that the Hon'ble High Court of Bombay has not granted any stay to the revenue against the earlier order of this Tribunal in the appellants own case on identical facts and issues, whether the earlier decision is binding or not, to examine the issue, they have gone through the decision in the case of Mercedes Benz (supra) wherein it was held that one must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter should be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. In our system of judicial review which is a part of their Constitutional scheme, they hold it to be the duty of the judges of the courts and members of the tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behavior. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it, ultimately, falls into disrepute. These are the observations made by the Apex Court in Sundarjas Kanyalal Bhathija v. Collector, Thane, AIR 1990 S.C. 261.
Further the Apex Court also had an occasion to notice similar impropriety in the case of Lala Shri Bhagwan v. Ram Chand, AIR 1965 S.C. 1767. The similar expressions are to be found in the case of Mahadeolal Kanodia v. The Administrator General of West Bengal, AIR 1960 S.C. 936.
Further they examined the issue in the case of Pramod Shah v. CC in Criminal Application 4230/06 and in the case of Sant Lal Gupta & Ors. in Civil Appeal No. 9439 of 2003 [2010 (262) ELT 6 (SC)]. Further they have also observed that in the earlier proceedings in this case the matter was heard by the division bench of this Tribunal. After hearing of the matter, a difference of opinion arose between the Members and the matter was referred to the third member of this Tribunal and thereafter a majority decision has been passed by the Tribunal i.e. 2: 1. In these circumstances, they do not find that the matter can be referred to the larger bench and following the judicial discipline as discussed earlier and as held by the Apex Court as well as the Hon'ble High Court of Bombay in the decision cited hereinabove, they are bound to follow the precedent decision in these appeals. Accordingly, they held that both the issue in this case has been decided by this Tribunal earlier in appellants own case on similar facts and identical issues. Accordingly, they do not want to interfere with the said decision, same is accepted. Hence the impugned order are set aside and appeals are allowed following the precedent decision in the appellants own case in appeal No. E/3763/05 and the miscellaneous applications are also disposed of.

Decision: - The appeal was allowed.

Comment:-The analogy drawn from this case is that even tribunals are required to maintain the judicial decorum and to follow the precedents laid down as otherwise it will lead to ambiguity in the minds as to what decision is legally correct.

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PJ/Case Laws/2012-13/1380

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