We 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, we do not find the matter can be referred to the larger bench and following the judicial discipline as discussed above and as held by the Apex Court as well as the Honorable High Court of Bombay in the decision cited herein above, we are bound to follow the precedent decision in these appeals. Accordingly, we find 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, we do not want to interfere with the said decision, same is accepted.
FULL TEXT OF THE CESTAT JUDGMENT
1. Today 11 miscellaneous applications and three appeals were listed for final disposal.
2. Learned advocate for the appellants appeared before us and submitted that in the appellants own case (for the subsequent period on the same issue), the appeals of the appellants were allowed by this Tribunal vide Order No. A-409/2008/WZB/C-IV-EB, date 22-4-2008. 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 applications.
2.1 We find that one miscellaneous application is filed by Revenue vide Application No. E/MA (ORS) 443/06-NBZ in Appeal No. E/893/03-NBZ 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, we find that the said application has been filed by revenue on 3-5-2006 and this Tribunal has passed the order in appellants own case on 22-4-2008. Hence, the said application become infructuous and is not relevant in these circumstances. Accordingly, the said application is rejected.
3. Now we take up these appeals for disposal.
3.1 The learned advocate for the appellants submits that the following issues are involved in these appeals :–(a) whether the duty in the present case is payable by the purchaser of goods and not by the 100% EOU or the duty is payable by 100% EOU, and (b) whether the supply effected in DTA, against the payment in foreign exchange under para 9.10 (b) of the export import policy can be accounted as DTA sale as per para 9.9 of the export import policy and accordingly are eligible for benefit of Notification 2/95-C.E. or not?
3.2 Learned advocate for the appellants submits that both the issues have been considered by this Tribunal in the appellants own case for subsequent period and this Tribunal vide Order No. A/409/2008/WZB/CII-EB, dt. 22-4-2008 have decided in favor of the appellants. Hence these decisions are binding on this Tribunal. To support this contention the learned advocate relied on the decision of Mercedes Benz India (P) Ltd. v. UOI, 2010 (252) E.L.T. 168 (Bom.). He further submitted that the department has challenged only one issue before the Honorable High Court of Bombay which is reproduced here under :–
“Whether CESTAT was justified in ruling in Central Excise duty need not be discharged by 100% EOU in respect of the clearances made to the DTA purchasers and Central Excise is to be discharged to DTA on such clearances”.
But no stay has been granted by the Honorable High Court against the order passed by this Tribunal. Hence, the order passed by this Tribunal is squarely applicable to this case. Hence, the appeals are to be disposed of in the same manner.
4.1 On the other hand, learned Departmental Representative submitted that with regard to the issue namely :–
“whether the supply of DTA against the payment in foreign exchange under 9.1 of the Export Import Policy could be accounted as DTA as per para 9.9 and accordingly are eligible for benefit of Notification 2/95-C.E.” was held by this Tribunal vide Order No. M1587/07-CII, dt. 3-9-2007 because the similar issue has been decided by the Honorable Supreme Court in the case of Virion 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 Virion Textile Mills (supra) which was passed in concession and same cannot be considered to be binding precedent. To support this contention, learned Departmental Representative relied on decision of Supreme Court in Civil No. 1020/05 in the case of Noida District Primary School Council Vs. Shristidhar Biswas and Ors. wherein it was held that “we do not want to comment further but we must make it 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 Vs. CC, 2008 (226) E.L.T. 102 (T.-Mum.).
4.2 On the second issue, Departmental Representative submitted that the Revenue has challenged the order dated 22-4-2008 before the Honorable 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 Vs. 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.
5. Heard and considered the submissions made by both sides.
6. On careful examination made by both sides, we find that in the appellants own case for subsequent period on the identical facts and issue, this Tribunal has passed the order in favor of the appellants. Now the only question before us on today is that whether the order, passed by this Tribunal in appellants own case on identical facts and issues is binding on us or not?
7. We do not agree that the submissions of the learned Departmental Representative that earlier order has been passed in concession as we observe that in the said order, the learned Departmental Representative himself has admitted that appellants are entitled for the benefit of Notification 2/95 relying on the decision of Virion 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, we find that it is an admitted fact that the Honorable 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 on us or not, to examine the issue, we have gone through the decision in the case of Mercedes Benz (supra) wherein para 17 of the order of the Honorable High Court of Bombay has observed as under :–
“17. We are not happy to observe but constrained to say 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 our Constitutional scheme, we 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.
18. The Apex Court also had an occasion to notice similar impropriety in the case of Lala Shri Bhagwan Vs. Ram Chand, AIR 1965 S.C. 1767; wherein it was observed as under :–
“It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is rounded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.”
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 (at p. 941); wherein it is observed :–
“We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin’s case, 58 Cal. WN 64 AIR 1954 Cal 119 was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety from the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another decision.”
19. Having said so, the impugned view taken by the Tribunal by no means can be said to be correct approach. Needless to mention that if the Tribunal wanted to differ to the earlier view taken by the Tribunal in the identical set of facts, the judicial discipline required reference to the larger bench. One co-ordinate bench finding fault with another co-ordinate bench is not a healthy way of dealing with the matters. In this view of the matter, we have no option but to set aside the impugned judgement passed by the Tribunal on 20-11-2009 incorporated at Exh.A to the petition.
20. In the result, impugned judgement dated 20-11-2009 is quashed and set aside. Appeal is restored to the file of the Tribunal with direction to hear and decide the same afresh by a reasoned order following principles of natural justice. If the Tribunal decides to take view contrary to the view holding the field, then in that event it is expected of the Tribunal to pass appropriate order leading to reference to a larger bench to resolve differences, if any.”
8. Further we have examined the issue in the case of Pramod Shah Vs. CC in Criminal Application 4230/06 wherein the Honourable High Court of Bombay has observed as under :–
“To say the least, the learned Additional Sessions Judge has committed a grave error in not following the binding precedent. The precedent does not cease to be binding merely because in the opinion of the learned Judge, the same is challenged in the Supreme Court and its operation stayed by the Supreme Court. In the decision reported in AIR 1992 Supreme Court Page 1439 in the case of M/s. Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association, Madras, the Honorable Supreme Court has very succinctly pointed out the difference between a judgement being quashed and set aside and its operation stayed by the higher court. The judgement being stayed does not wipe it out unless and until it is so wiped out, it continues to be binding on the lower and subordinate courts. Thus, the learned Judge ought to have decided the application on the touch stone of the law laid down by this court as also the Honorable Supreme Court in other decisions brought to his notice.”
9. Further in the case of Sant Lal Gupta & Ors. in Civil Appeal No. 9439 of 2003 [2010 (262) E.L.T. 6 (S.C.)] the Honorable Apex Court has observed as under :–
“18. A coordinate bench cannot comment upon the discretion exercise or judgement rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciates rules of law form the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed. (Vide : Tribhovandas Purshottamdas Thakkar Vs. Ratilal Motilal Patel & Ors. AIR 1968 S.C. 372; Sub-Committee of Judicial Accountability v. Union of India & Ors. (1992) 4 SCC 97; and State of Tripura Vs. Tripura Bar Association & Ors. (1998) 5 SCC 637).
19. In Rajasthan Public Service Commission & Anr. v. Harish Kumar Purohit & Ors. (2003) 5 SCC 480, this Court held that a bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier bench of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues. If the latter bench wants to take a different view than that taken by the earlier bench, the proper course is for it to refer the matter to a larger bench.”
10. We 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.
11. In these circumstances, we do not find the matter can be referred to the larger bench and following the judicial discipline as discussed above and as held by the Apex Court as well as the Honorable High Court of Bombay in the decision cited herein above, we are bound to follow the precedent decision in these appeals. Accordingly, we find 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, we 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.
12. The miscellaneous applications are also disposed of in the above manner.