TMI Blog2014 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... ed:- 31-3-2014 - DR. D.M.MISRA AND DR. I.P.LAL, JJ. For the Appellant : SHRI A.D.RAY, ADVOCATE For the Respondent : SHRI S.MISRA,A.R.(ADDL. COMMR.) ORDER Per Dr. D. M. Misra: Heard both sides. Vide Order NoS-164-166/KOL/2013 dated 29.04.2013, while disposing the Stay Applications filed by the Applicants, namely, M/s. NICCO Corporation Ltd., Shri Nirmal Kumar Chatterjee, General Manager(Commercial) and Shri Udayan Ray, Managing Director, seeking waiver of pre-deposit of total dues adjudged against all the three Applicants i.e. ₹ 5,90,54,202/-(Five Crores Ninety lakhs fifty four thousand two hundred two rupees), this Tribunal had directed the Applicants to deposit of 25% of ₹ 34,14,010/- i.e.around ₹ 8,53,502/-(Eight Lakhs Fifty Three Thousand Five Hundred two only) and subject to said deposit, allowed waiver pre-deposit of remaining dues adjudged against all the Applicants. Later, their Appeals were dismissed on 10.07.2013 for non-compliance with direction of pre-deposit. 2. The Applicants approached the Hon ble Calcutta High Court against the said waiver Order dt. 29.04.2013 by filing a Writ Petition No.19214 (W) of 2013. The Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial hardship expressed by the Applicant, waived pre-deposit of the entire amount of duty and penalty of ₹ 4,47,26,182/- confirmed on this count. 6. The second issue relates to confirmation of demand of ₹ 34,14,010/- and equal amount of penalty on the ground that they have availed CENVAT Credit on the waste and scrap of wires and cables, but while clearing the same from their factory as such, cleared it as non-excisable goods, against commercial invoices, without reversal/payment of appropriate CENVAT Credit/duty, availed on such inputs. This Tribunal, prima facie, found from their submission that their approach is ambivalent in as much as that the Applicant themselves had claimed that the waste and scrap of wire cable as non-excisable but availed credit on the same; secondly, they have not complied with the provisions of Rule 3(5) of the CENVAT Credit Rules,2004, while clearing, the said waste and scrap brought as input, from the factory, by debiting the credit/duty involved availed on such inputs. Though the Applicant is required to reverse the entire amount of credit on the face of the finding of the adjudicating authority, however, taking into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the inputs, at the time of clearance of the same as such, under commercial invoices, contrary to Rule 3(5) of the CENVAT Credit Rules,2004 they should be asked to deposit the entire amount of credit. 11. The Ld. A.R. further submitted that the decision of the Honourable Supreme Court in Sagarika Acoustronics Pvt. Ltd. s case is binding on the parties to the said case and cannot be considered as the principle of law laid down and applicable as a binding precedent to all cases. He submits that on the other hand the Hon ble Supreme Court in the case of Metal Box India Ltd. Vs. Commissioner of Central Excise 2003(155) ELT 13(SC) after considering the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 observed that the same is not applicable to deposits under Section 35F of CEA,1944. He has further submitted that after considering the principle laid down by the Apex Court on the issue of disposal of stay Application and the aforesaid two judgments, the Hon ble Gujarat High Court in the case of Special Prints Ltd. Vs. Union of India, 2009 (238) ELT 738(Guj.) has upheld the direction of pre-deposit of ₹ 4 Crores, which is around 20% of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of (i) and (ii) above. For the purposes of the parties, themselves and their privies, ingredient No. (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purposes of the doctrine of precedents, ingredient No. (ii) is the vital element in the decision. This indeed is the ratio decidendi. (5) It is not everything said by a Judge when giving judgment that constitutes a precedent. 14. Further a Five Member Bench of the Hon ble Court Supreme Court in the case of Krishena Kumar Vs. Union of India AIR 1990 SC 1782 at pp 1793 observed as: 18. The doctrine of precedent, that is being bound by a previous decision. is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain propositions wider than the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts and circumstances in the said case and is binding on the parties to the case; the same cannot be made applicable to other cases as a binding precedent. In contrast, we find that the Hon ble Supreme Court in Metal Box case (supra) laid down the legal principle on the issue of direction of pre-deposit under section 35F of CEA,1944 to an applicant, registered as a Sick Unit with BIFR under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 in the following words: 3. Mr. Rana Mukherjee, the learned Counsel for the appellants, submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act ), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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