TMI Blog2001 (8) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Duty. The said writ petitions were finally disposed of on 2-5-86. Show Cause Notices were then issued by the Department to the appellants asking them to pay differential Central Excise Duty classifying the goods out of ship-breaking under Heading 72.15. Further writ petitions were filed by the appellants in the Hon'ble Calcutta High Court against the SCNs. The Hon'ble Calcutta High Court passed interim orders for giving final order in respect of the SCNs but not to realise the demand amount till the disposal of the writs. The demands were confirmed. The Hon'ble Calcutta High Court dismissed the writ petitions in terms of their judgment dated 29-1-88. The appellants filed an appeal before the Division Bench alongwith the stay petition for staying the Hon'ble High Court's order dated 29-1-88 but the same were rejected. Against the judgment of the Division Bench, the appellants filed S.L.P. before the Hon'ble Supreme Court who disposed of the S.L.P. on 12-9-94 directing the appellants to move in appeal under Section 35A of Central Excise Act, 44. They filed appeals accordingly. The main contention of the appellants was that no manufacturing activity takes place when the ships ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986. Ld. Counsel submits that the authorities concerned could not levy Central Excise Duty on the items removed by the appellants after the Hon'ble Calcutta High Court judgment in the case of M/s. S.S. Jain Others v. U.O.I.; that in the instant case, materials which were obtained upon dismantling of the old ships and vessels which were purchased, had not been specified to be a 'manufacturing process' and as such, the same could not be held liable to Central Excise Duty. 5. Ld. Counsel submits that the Hon'ble Calcutta High Court in their judgment dated 2-5-86 had expressly declared Tariff Item No. 72.15 and 73.09 ultra vires the provisions of the said Act of 1944 in so far as duty is sought to be imposed on goods under Tariff Item No. 72.06, 72.07 to 72.13 and also goods and materials of Heading Nos. 73.03 to 73.08; that the ld. Commissioner (Appeals) ought to have held that Article 265 of the Constitution of India, inter alia, provided that no tax shall be levied or collected except by the authority of law; that the appellants had dismantled the said vessel by taking out or cutting through the rivets, nutes etc. whereby the said plates, sheets were held together; that the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7215.00 and that no argument that the said activity is not a manufacture in terms of Section 2(f) of Central Excise Act, 44 can be accepted. Ld. Counsel submits that the decision of the Hon'ble Calcutta High Court in the case of M/s. S.S. Jain Others v. U.O.I. was not brought to the notice of the Tribunal and thus the decision of the Tribunal was perincuriam and therefore, cannot be cited as a precedent. It was further contended by the ld. Counsel for the appellants that the Calcutta Bench of the Tribunal was within the jurisdiction of the Hon'ble Calcutta High Court and therefore, the decision of the Hon'ble Calcutta High Court in the case of M/s. S.S. Jain Others v. U.O.I. is binding on the Calcutta Bench of the Tribunal; that this decision of the Hon'ble Calcutta High Court was also binding on the ld. Commissioner (Appeals). Ld. DR further submitted that this decision of the Delhi Bench of this Tribunal has been confirmed by the Apex Court as reported in [1999 (108) E.L.T. A180] where under the Hon'ble Supreme Court dismissed the Civil Appeal filed by M/s. Ashish Steel Pvt. Ltd. against CEGAT's order. Ld. DR submits that according to the doctrine of merger which means tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have heard the rival submissions. We find that the main dispute is whether the activity of ship-breaking amounts to manufacture. We note that this issue has been decided by the Delhi Bench of this Tribunal in the case of Ashish Steel Pvt. Ltd. v. CCE, Goa. The contention of the appellant was that this decision of the Delhi Bench of the Tribunal was perincuriam. 12. Incuria literally means carelessness. In practice perincurium appears to mean per ignoratium, English Courts have developed this principle in relaxation of the share decisis. We find that as a general rule only cases in which the decision should be held to have been given perincurium are those of decisions given in ignorance or forgetfulness or some inconsistent statutory provisions or of some authority binding on the Court concerned. A decision taken when refers to several decisions striking a different note cannot be considered as a precedent. A decision rendered perincurium is one in which statute or ruling having a statutory effect is not brought to the notice of the Court or decision is given in ignorance of a decision which is binding on the Court. In such a case the decision perincurium does not have way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Cruise ships, excursion boats, ferry-boats, cargo ships, barges and similar vessels for the transport of persons or goods. 89.08 - Other floating structures (for example, rafts, tanks, coffer-dams, landing stages, buoys and beacons). As would be observed from the above extracts, Tariff sub-heading 7215.00 clearly identifies goods and materials obtained by breaking up of ships, boats and other floating structures as leviable to duty at the rate of Rs. 1800/- per tonne. The words 'ships and boats and other floating structures' are almost entirely a repetition of the heading given under Chapter 89 which reads as "ships, boats and other floating structures". Further, Chapter sub-heading 8901.00 includes cruise ships, excursion boats, ferry boats, cargo ships, barges and similar vessels for transport of persons or goods. Ld. Counsel had submitted that since 'barges' have been separately mentioned side by side with cruise ships, excursion boats etc., this would clearly show the intention of the legislature to treat "strips" and "barges" as two different and distinct items. As regards 'floating structures' Chapter sub-heading 89.07 had given various typ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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