TMI Blog2014 (9) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Writ as understood in English Law, but can reach where the injustice is found. The order impugned is set aside. The CESTAT is directed to consider the application afresh in the light of the law laid down in case of Sagarika Acoustronics Pvt. Ltd. (2007 (3) TMI 723 - Supreme Court of India) and the observations made in this order, and shall restrict its decision on the net-worth of the company on the basis of the records and materials already produced by the petitioner. - Decided in favor of assessee. - W. P. 20169 (W) of 2014 - - - Dated:- 12-8-2014 - The Hon ble Justice Harish Tandon,JJ. For the Petitioners : Mr. Pranab Kumar Datta, Mr. Shovendu Banerjee. For the Respondents : Mr. S. B. Saraf, Mr. K. K. Maiti. ORDER Harish Tandon, J. : The petitioner has assailed the order dated 8th May, 2014 passed by the Customs, Excise Service Tax Appellate Tribunal (in short CESTAT ), Kolkata disposing of an application for stay filed in connection with the Customs Appeal No. C/A 187-193/2010 directing the petitioner to deposit a sum of ₹ 1.14 crores as condition precedent for maintaining the appeal. Challenging the order of the adjudicating of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder cannot be said to be a replica of the earlier order. The respective counsel have addressed more on the point of law than on the merit, as according to the petitioner the impugned order was passed in clear departure from the ratio laid down in Sagarika Acoustronics Pvt. Ltd. (supra), whereas the respondents did not agree with the aforesaid submissions, as according to them there was no ratio laid down in the said judgement and the Tribunal has proceeded on the proposition of law, which is operating in the field and does not require any interference in Writ jurisdiction. In addition to the same the respondents took a preliminary objection as to the maintainability of the writ petition because of the alternative efficacious remedy by way of an appeal provided under Section 35G of the Central Excise Act and in support thereof a reliance was placed upon a Division Bench judgement of Andhra Pradesh High Court delivered in case of Patel Engineering Ltd. vs. Commr. of C. Ex., Cus. S. T., Hyderabad-II reported in 2014 (305) ELT 234 (AP). Let me first address the issue whether the Tribunal has in true spirit and purport showed its adherence to the directions passed by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case itself required. This was what Lord Selborne said in Caledonian Railway Co. v. Walker s Trustees 1982 (7) A.C. 259 and Lord Halsbury in Qulnn. Leathem (1901) A.C. 495 (502). Sir Frederick Pollock has also said : Judicial authority bnelongs not to the exact words used in this or that judgment, not even to all the reasons given, but any to the principles accepted and appliled as necessary ground of the decision. 19. In other words, the enunciation of the reason or principle upon which a question before a Court has been decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration of the judgement in relation to the subject-matter of the decision has a force of law and constitutes the ratio decidendi. The ratio decidendi is required to be ascertained upon reading the full judgement and not by taking one or two observations. The aforesaid proposition can be fortified from a Five Bench Judgement of the Supreme Court in case of Krishena Kumar vs. Union of India reported in AIR 1990 SC 1782. In Sagarika Acoustronics Pvt. Ltd. (supra) the appellant therein was directed to deposit a sum of ₹ 1.40 crores and because of non-compliance thereof, the appeal stood dismissed. The order was carried before the Bombay High Court by filing a writ petition, which stood dismissed with clear exposition of law that Section 22 of SICA does not cover the matter concerning Section 35F of the Central Excise Act, 1944 by relying the judgement of the Supreme Court rendered in case of Metal Box India Limited (supra). The matter was further carried to the Supreme Court and the order of the High Court was set aside with the following observations: Delay condoned. Leave granted. The appeal of the assessee has been dismissed by the Tribunal for non-deposit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company against any order passed under Section 35F of the said Act. What has been held in Sagarika Acoustronics Pvt. Ltd. (supra) is that while granting waiver of the pre-deposit or the stay during the pendency of an appeal, if the net-worth of the company is negative, it would be unjust and cause undue hardship to the sick company to be asked to deposit money as condition precedent, which can be reasonably inferred from the meaningful reading of the paragraph, which says that if the net-worth of the company is found to be negative then the Tribunal will consider the restoration of appeal to its file and even the matter will have to be decided on merit. What was intended is the hearing of an appeal in the event the net-worth of the company is negative instead of dismissing the same for non-deposit of the amount, which is precondition to maintain the said appeal. This Court does not find that there is any conflict on the law laid down in case of Metal Box India Limited (supra) and Sagarika Acoustronics Pvt. Ltd. (supra), as the point of law raised therein are not identical and similar. Even prior to Metal Box India Limited the Apex Court in case of Tata Davy Ltd. vs. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be read in the manner suggested by learned Counsel for the respondents. 13. The Corromandal Pharmaceuticals judgment dealt with a sick industrial company which was enabled to collect amounts like sales tax after the date of the sanctioned scheme. This court said, such amounts like sales tax, etc. which the sick industrial company is enabled to collect after the date of the sanctioned scheme, legitimately belonging to the Revenue, cannot be and could not have been intended to be covered within Section 22 of the Act. It added that the issue that had been arisen before it had not arisen in the case of Vallabh Glass Works. It did not appear therefrom or from any other decision of this Court or of the high Courts that in any one of them, the liability of the sick company dealt with therein itself arose for the first time afte the date of sanctioned scheme. At any rate, in none of these cases a situation arose whereby the sick industrial unit was enabled to collect tax due to the Revenue from the customers after the sanctioned scheme but the sick unit simply folded its hands and declined to pay it over to the Revenue, for which proceedings for recovery had to be taken . Clearly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-deposit is filed, one of the considerations would be that in case of an industrial unit or the company having gone before the BIFR, the net-worth of the same is negative or not. It is axiomatic to record that the impugned order is passed showing obstinacy than on recording the consideration required therefor. The Tribunal appears to have swayed by its own judgement rendered in case of Nicco Corporation Ltd. (supra), wherein the ratio laid down in case of Sagarika Acoustronics Pvt. Ltd. (supra) was misinterpreted or misconstrued than addressing the actual and real issue. It would not be wrong to say that even after laying down the correct proposition of law on the principle of ratio decidendi, the Tribunal has done just opposite to what has been laid down. It would be appropriate to quote the observations of the Supreme Court in case of Markio Tado vs. Takam Sorang reported in (2013) 7 SCC 524, wherein it is held in express terms that ignoring the law laid down by the Supreme Court and taking its own view, which is contrary to the ratio laid down therein, amounts to judicial adventurism and shakes the confidence reposed by a citizen of the country in these words: 28. The Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial indiscipline and disregard to the mandate of Article 141 of the Constitution of India. This is shocking, to say the least, and most unbecoming of a judge holding a high position such as that of a High Court Judge. We fail to see as to what made the judge act in such a manner, though we refrain from going into that aspect. 30. Before we conclude, we may state that it is unfortunate that such acts of judicial impropriety are repeated in spite of clear judgments of this court on the significance of Article 141 of the Constitution. Thus, in a judgment by a bench of three judges in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd., this court observed: (SCC p. 463, para 32) 32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consideration the directions passed by this Court in an earlier writ petition and, therefore, the contention of the petitioner in this writ petition that it is the replica of the earlier decision cannot be brushed aside. The impugned order completely lacks the finding on the net-worth of the company, which is one of the factors to be considered at the time of consideration of an application for stay or waiver of pre-condition deposit under Section 35F of the Central Excise Act. There is no absolute bar in entertaining the writ petition despite the availability of a remedy by way of an appeal or otherwise provided under the statute. The Writ jurisdiction is based on rule of discretion than of compulsion. The power cannot be circumscribed in a narrow compass, as the language under Article 226 of the Constitution is designedly couched in a broader language and not confining it only to the power to issue a prerogative Writ as understood in English Law, but can reach where the injustice is found. The scope under Article 226 of the Constitution of India and the power of the High Court to issue a Writ of Mandamus or Writ in the nature of Mandamus have been explained in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Mayor of Rochester v. Regina said: But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen s Bench. That court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute : Comyn s Digest, Mandamus (A) Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable. The principle enunciated in the above case was approved and followed iin King v. Revising Barrister for the Borough of Hanley. In Hochtief Gammon case this Court pointed out (at p. 675 of Reports : SCC p.656) that the powers of the courts in relation to the orders of the government or an officer of the government who has been conferred any power under any statute, which apparentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The sheet anchor of the arguments advanced by the respondents on the issue of availability of the alternative remedy is founded on the Division Bench judgement of Andhra Pradesh High Court in case of Patel Engineering Ltd. vs. Commr. of C. Ex., CUS. S. T., Hyderabad-II reported in 2014 (305) ELT 234 (A.P.). In paragraph 4 of the said judgement the Division Bench held that there is no absolute bar in entertaining the writ petition despite the alternative remedy and the power to interfere is embodied or inbuilt in the Article 226 of the Constitution of India in these words: This decision requires adjudication at the first instance because ordinarily, statutory remedy is not ignored by the writ Court in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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