VRL Logistics Ltd. Vs Commissioner of Customs (CESTAT Ahmedabad)
Held that incorrect earlier decision by a bench of co-ordinate jurisdiction cannot be rendered per incuriam. Earlier decision has binding effect on a bench of co-ordinate jurisdiction.
Facts- The division bench while hearing Customs appeal filed by VRL Logistics Ltd. and other connected Customs Appeals noticed that two contradictory views had been expressed by division benches of the Tribunal in Commissioner of Customs, New Delhi vs. Sameer Gehlot and King Rotors & Air Charter P. Ltd. vs. C.C., Mumbai.
In Sameer Gehlot the benefit of the exemption notification No. 61 of 2017 dated 03.05.2007 was held to be available to the importer of an aircraft that had been granted a permit by the Director General of Civil Aviation for operating non-scheduled (passenger) services, the benefit of the aforesaid exemption notification was denied in King Rotors. The division bench, accordingly referred the matter to a larger bench of the Tribunal to express its view as to which of the two views expressed by the division benches was the correct view.
Conclusion- Held that the earlier decision may have appeared to be incorrect by a bench of co-ordinate jurisdiction on the ground that a possible aspect of the matter was not considered or more aspects should have been considered. This cannot be a reason to hold that the earlier decision by a co-ordinate bench was rendered per incuriam. The earlier judgment may seem to be not correct, but it would still have a binding effect on a bench of co-ordinate jurisdiction.
There is, therefore, no difficulty in holding that the division bench in King Rotors was not justified in holding that the decision of the earlier division bench in Sameer Gehlot had been rendered per incuriam as neither it was pointed out that provisions of a Statue or a judicial authority of binding nature had been ignored.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
A division bench of this Tribunal, while hearing Customs Appeal No. 74 of 2010 filed by VRL Logistics Ltd.1 and the connected Customs Appeals bearing No‟s. 75 of 2010, 76 of 2010, 77 of 2010, 78 of 2010, 79 of 2010, 80 of 2010, 81 of 2010, 82 of 2010, 83 of 2010, 114 of 2010, 115 of 2010, 116 of 2010, 117 of 2010, 118 of 2010, 119 of 2010 and 120 of 2010, noticed that two contradictory views had been expressed by division benches of the Tribunal in Commissioner of Customs, New Delhi vs. Sameer Gehlot2 and King Rotors & Air Charter P. Ltd. vs. C.C. (ACC & Import), Mumbai3, for while in Sameer Gehlot the benefit of the exemption notification No. 61 of 2017 dated 03.05.20074 that amended the earlier exemption notification No. 21 of 2022 dated 01.03.2002 was held to be available to the importer of an aircraft that had been granted permit by the Director General of Civil Aviation5 for operating non-scheduled (passenger) services, the benefit of the aforesaid exemption notification was denied in King Rotors. The division bench, accordingly referred the matter to a larger bench of the Tribunal to express its view as to which of the two views expressed by the division benches was the correct view.
2. When the remaining Customs Appeals, which also relate to the same issue as to whether the benefit of the aforesaid exemption notification should be available to such an importer of an aircraft, came up before division benches of the Tribunal orders were passed to connect them with Customs Appeal No. 74 of 2010. This is how all the aforesaid Customs Appeals have been placed before this larger bench. It needs to be stated that in Customs Appeal No. 338 of 2009, which is pending before the Principal Bench of the Tribunal at Delhi, submissions have been advanced as an intervenor.
3. The exemption notification dated 03.05.2007, on which revolves the entire controversy, grants „nil‟ rate of duty on import of aircraft for non-scheduled (passenger) services as well as non-scheduled (charter) services subject to Condition No. 104 that is required to be fulfilled by an importer of the aircraft for availing the benefit of the exemption notification. The relevant portion of the said exemption notification is reproduced below:
“In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 21/2002-Customs, dated the 1st March, 2002 which was published in the Gazette of India, Extraordinary, vide number G.S.R. 118(E) of the same date, namely:-
In the said notification,-
(A) In the Table,-
(i) xxxxxxxx
(ii) after S. No. 347 and the entries relating thereto, the following S. Nos. and entries shall be inserted, namely:-
