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2016 (9) TMI 670 - ANDHRA PRADESH HIGH COURT

2016 (9) TMI 670 - ANDHRA PRADESH HIGH COURT - 2016 (340) E.L.T. 145 (A. P.) - Effective date of notification - Notification No.36/2001-Cus(NT) dated 03.08.2001 - notification issued for publication in the gazette on 03.08.2001 - gazette made available to public on 07.08.2001 - Circular No.46/2001 dated 10.08.2001 - import of edible oil including palmolein oil - bill of entry for home consumption was filed on 03.08.2001 - powers conferred to fix the tariff value - Section 14(2) of the Customs Ac .....

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r import of R.B.D. Palmolein oil on 03.08.2001, is illegal. Customs duty on R.B.D. Palmolein oil, imported on 03.08.2001, could only have been levied on its invoice value, and not on the tariff value prescribed subsequently in Notification No.36/2001 dated 03.08.2001. - The High Court has stated that for bringing the notification into force and make it effective, two conditions are mandatory, viz., (1) Notification should be duly published in the official gazette, (2) it should be offered fo .....

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-6-2016 - SRI RAMESH RANGANATHAN AND SRI M.SATYANARAYANA MURTHY, JJ. For The Petitioner : Sri G.L. Rawal, Learned Senior Counsel,Sri Y. Srinivasa Reddy and Sri G. Anandam. For The Respondent : Sri P.S.P. Suresh Kumar, Learned Standing Counsel for Central Excise COMMON ORDER: (per Honble Sri Justice Ramesh Ranganathan) W.P. No.19303 of 2001 is filed seeking a writ of mandamus to declare that Notification No.36/2001-Cus(NT) dated 03.08.2001 is valid and enforceable only on and from 07.08.2001 when .....

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th of the tariff value fixed by the said notification, as arbitrary and illegal. It would suffice, for the disposal of both the Writ Petitions, if the facts in W.P. No.20536 of 2001 are noted. The petitioner in W.P. No.20536 of 2001 carries on business in the import of edible oils including RBD Palmolein oil. They imported 1009.234 metric tonnes of RBD Palmolein oil of edible grade in bulk at 248 U.S. dollars per metric tonne. A bill of entry for home consumption was filed on 03.08.2001 for the .....

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and the invoice value of 248 U.S. dollars per metric tonne), the petitioner invoked the jurisdiction of this Court contending, among others, that Notification No.36/2001 dated 03.08.2001 came into force only from 07.08.2001; as the bill of entry for home consumption was filed earlier on 03.08.2001, they were not liable to pay customs duty at the tariff value, fixed under Notification No.36/2001, of 372 U.S. dollars per metric tonne; and they had rightly paid customs duty on the invoice value of .....

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held by the Supreme Court to have come into force on or after 06.08.2001, the respondents cannot apply the tariff value prescribed under Notification No.36 of 2001 to goods imported on 03.08.2001; reliance placed on behalf of the respondents, on the Division Bench judgment of this Court in M/s. K.G.F. Cotton Pvt. Ltd v. Union of India , is misplaced; the judgment of the Karnataka High Court in Param Industries Ltd v. Union of India was affirmed by the Supreme Court in Param Industries Ltd 2015 ( .....

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ing Counsel for Central Excise, would submit that the Gazette of India notification bears 03.08.2001 as the date on which it was published in the Official Gazette; the said notification must, therefore, be held to have come into force on 03.08.2001 itself; Section 25 of the Customs Act, on which reliance has been erroneously placed both by the Karnataka High Court and the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.), relates to exemptions; the power conferred on the Central .....

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fication was published in the Gazette on 03.08.2001, the tariff value mentioned therein is the value on which customs duty is required to be paid, and not the invoice value; reliance cannot be placed on internal correspondence of the department in this regard; the law declared by the Supreme Court in Param Industries Ltd 2015 (321) E.L.T. 192 (S.C.) is per incuriam as it is contrary to the law declared in the earlier judgments of the Supreme Court in M/s. Pankaj Jain Agencies v. Union of India a .....

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and batch dated 20.02.2013), considered the Division bench judgment of the Karnataka High Court in Param Industries Ltd 2002 (150) E.L.T. 3 (Kar.), and differed therefrom to hold that Notification No.36 of 2001 came into force from 03.08.2001 and not on or after 06.08.2001; and the judgment of the co-ordinate bench, in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), is binding on this Court. At the outset it is necessary to note that Notification No.3 .....

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itioner on 03.08.2001 as is evident from the bill of entry for home consumption dated 03.08.2001. If the said notification is held applicable, the respondents must be held to be justified in levying customs duty on the tariff value of R.B.D. Palmolein oil at 372 U.S. dollars per metric tonne. If, however, the said notification is held inapplicable in determining the value of the subject goods imported on 03.08.2001, the petitioner must then be held to be justified in paying customs duty on the i .....

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reafter, as stated by the petitioners and further whether the notification has been issued within the terms and after meeting the requirements of Section 14(2) of the Customs Act. In the facts of the given case, it is clearly averred in the petitions that notification dated 3-8-2001 was not gazetted on the same day. 4th and 5th were public holidays and hence notification must have been published in the Gazette only after 6-8-2001 and petitioners' Counsels have also produced copy of fax messa .....

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lication of notification in Gazette on 3-8-2001 and it is specifically averred that publication in the Gazette was subsequent to 6-8-2001. Further, the petitioners have produced copy of letter dated 1-2-1990 written by Government of India, Ministry of Finance, Department of Revenue (Annexure-E in W.P. No. 34758 of 2001) addressed to the Director, Directorate of Publication, Government of India which shows that, as per directions issued by earlier letter dated 12-8-1985, it was meant to restrict .....

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n that in response to a clarification sought by the petitioners, the Assistant Controller (Business), Government of India, Department of Publication, Delhi vide his letter dated 10- 9-2001 has informed the petitioners that Issue No. 548 of the Official Gazette was made available for public sale on 6-8-2001 as per the records of the department. The issue number of the Customs Notification No. 36/2001-CUS (N.T.), dated 3-8-2001 being 549, it is clearly established that the said notification was ma .....

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by Act 25 of 1998 with effect from 1- 6-1998, prescribing that unless otherwise provided, every notification issued under Section 25(1) comes into force on the date of its issue by the Central Government for publication in Official Gazette with the further stipulation that such notification shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. This clearly shows the intention of the legislature that a .....

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ion effective from the date of its issue for publication. This provision added with effect from 1-6-1998 also shows that the date of publication in the Official Gazette and the date of its issue for publication in the Official Gazette can be different. In the present case the said notification was published in the Official Gazette on 6-8-2001 and not before 6-8-2001 and was offered for sale not before 6-8-2001. Therefore, even as per the judgment of the Hon'ble Supreme Court, the said notifi .....

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ficial record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Indian Evidence Act unless contrary is proved. Despite directions the respondents have not chosen to produce the records to show that averment made in the writ petitions is false and that notification was published on 3-8-2001 itself. It is clear from the averments made in the affidavit dated 30-8-2002 and Annexure-R1 produced along with the af .....

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ursuant to the said letter Gazette notification was published on 3-8-2001 itself. But on a perusal, it is clear from Annexure-R1 that the date 6-8-2001 has been overwritten as 3-8-2001 and that apart in the letter sent to the Government of India Press on 3-8- 2001 the said overwriting has not been attested or explained in the affidavit. Be that as it may. What is produced is the Xerox copy of the letter and therefore the said letter is not helpful to show that it was published in the Gazette on .....

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and hence petitioners are entitled to succeed on this ground.. (emphasis supplied) It does appear, from the facts noted by the Division bench of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), that Notification No.36 of 2001, forwarded to the Cochin Excise Office by way of a Fax message, contained the endorsement to be published in Gazette; the Fax message was received at the Cochin Excise office at 11.44 p.m. on 03.08.2001; as 04/05-08-2001 were public holidays i.e. .....

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G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), differed from the judgment of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), and held:- The Karnataka High Court in Param Industries Ltd (2 supra) dealt with the same notification and held that the notification was not published on 03.08.2001; that it was published on 06.08.2001 as per the letter dated 10.09.2001 of the Assistant Controller (Business), Government of India, Department .....

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a High Court and the Appeals are pending before the Supreme Court. (emphasis supplied) While dissenting from the decision of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), the Division Bench of this Court, in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), relying on Sections 35, 38 and 81 of the Indian Evidence Act, held that the Court is required to presume the contents of the Official Gazette as genuine; and, as the Gaze .....

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al record evidencing public affairs, and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act unless the contrary is proved. (Ganesh Das Bhojraj(2000) 9 SCC 461; M/s. K.G.F. Cotton Pvt. Ltd(Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013)). It is thus evident that, notwithstanding the presumption regarding the genuineness of the contents of the Gazette, it is open to the Court to hold, on the basis of the material .....

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at notification issued Under Section 14(2) of the Customs Act cannot be held to have come into force with effect from 03.08.2001. There was some dispute as to whether the notification was published on 03.08.2011 itself or it was published on a later date. However, from the record, it gets revealed that the notification was sent for publication after the normal office hours, i.e., much after 5 p.m. on 03.08.2001. It was almost at the midnight, may be few minutes before 12 in the night. Even if it .....

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this Court in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), and the said judgment was dissented from on the ground that the appeal preferred thereagainst was pending before the Supreme Court, the fact remains that the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.), while referring to the facts noted by the Division Bench of the Karnataka High Court which does appear to show that Notification No.36 of 2001 could not have been publis .....

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8440 of 2001 and batch dated 20.02.2013). It is necessary, in this context, to bear in mind that a Division Bench is bound by the judgment of another Division Bench and a Full Bench of the same High Court. They cannot differ from the earlier judgment of co-ordinate jurisdiction merely because they hold a different view as certainty and uniformity in the administration of justice are of paramount importance. (Commissioner of Income Tax v. M/s B.R. Constructions ). An earlier decision may seem to .....

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tion. The easy course of saying that the earlier decision was rendered per incuriam is not permissible and the matter can be resolved only in two ways either for the earlier decision to be followed or to refer the matter to a larger Bench. (State of Bihar v. Kalika Kuer (2003) 5 SCC 448 ). When a Division Bench disagrees with another bench of co-ordinate jurisdiction, whether on the basis of different arguments or otherwise, it is appropriate that the matter be referred to a larger Bench for res .....

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ions(1994) 1 An .W.R.450 (FB)). When a Division bench is disinclined to follow the earlier binding decisions of an other Division bench of the High Court, the proper course is to refer the matter to a Full Bench for its decision. (State of W.B. v. Falguni Dutta (1993) 3 SCC 288). Even if the view expressed by the Division Bench of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.) were to commend acceptance, and not the contrary view expressed by a co-ordinate bench of th .....

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Official Gazette, exempt generally, either absolutely or subject to such conditions to be fulfilled before or after clearance, as may be specified in the notification, goods of any specified description from the whole or any part of duty of customs leviable thereon. Section 25(4) stipulates that every notification, issued under sub-section (1), shall, (a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette; (b) al .....

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because of Section 25(4) and (5) that an exemption notification, issued under Section 25(1), would come into force from the date on which it is offered for sale by the Directorate of Publicity and Public Relations, and not earlier from the date of its publication in the Official Gazette. As is evident from the observations of the Division Bench of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), (extracted earlier in this judgment), Sections 25(4) & (5) of the Cus .....

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ce and make it effective, two conditions are mandatory, viz., (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening hours and 04/05.08.2001 were holidays. We are in agreement w .....

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917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the .....

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oncerned Board, which event took place much thereafter. Therefore, it was not justified and lawful on the part of the Department to claim the differential amount of duty on the basis of said notification. These appeals are, accordingly, allowed only on this ground and it is not necessary to go into other issues at all.. (emphasis supplied). In M/s. K.G.F. Cotton Pvt. Ltd(Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), a Division bench of this Court observed:- Sub-section (2) of S. .....

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issue by the Central Government for publication in the Official Gazette and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In view of the fact that there is no requirement in S.14 that, to be effective, a notification issued under the said provision, should also be offered for sale, we are unable to accept the contention of the counsel for the petitioners that duty cannot be demanded on the basis of a notification, till it .....

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prescription in Section 14(2) thereof and, consequently, Notification No.36/2001, issued in exercise of the power conferred by Section 14(2), must be held to have come into force on the date on which it is notified in the Official Gazette ie 03.08.2001. Learned Standing Counsel would also submit that a statutory notification comes into force on the date it is notified in the Official Gazette; the judgment of the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.) is per incuriam as .....

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ms Act to hold that Notification No.36/2001 came into force on 03.08.2001, and that Section 25 is inapplicable, it is necessary to refer to Section 14 of the Customs Act, 1962 which relates to valuation of goods. Sub-section (1) of Section 14 stipulates that, for the purposes of the Customs Tariff Act, 1975 or any law for the time being in force, the value of the imported goods shall be the transaction value of such goods that is to say, the price actually paid or payable for the goods when sold .....

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s satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix the tariff value for any class of imported goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. In view of the non-obstante clause in Section 14(2) the value of the imported goods, for the purpose of levy of customs duty, shall be the tariff value fixed by way of a no .....

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on 14(2) thereof stipulates that the notification issued thereunder should be published in the Official Gazette. We find considerable force in the submissions of Sri P.S.P.Suresh Kumar, Learned Standing Counsel for Central Excise, that Section 25, which relates to grant of exemption, has no application to Notification No.36 of 2001 whereby the tariff value for import of R.B.D. Palmolein oil was fixed, as the said notification is not referable to Section 25 but to Section 14(2) of the Customs Act .....

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ther reasonable mode of publication. (M/s. Pankaj Jain Agencies (1994) 5 SCC 198; B.K. Srinivasan v. State of Karnataka (1987) 1 SCC 658 ). Publication in the Official Gazette, i.e., Gazette of India, is the ordinary method of bringing a rule or subordinate legislation or a statutory notification to the notice of the persons concerned. Individual service of a general notification on every member of the public is not required, and the interested person can acquaint himself with the contents of th .....

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he counsel for the respondents has produced an attested copy of the Gazette of India No.549 dated 03.08.2001 showing that the notification No.36/2001-CUS(NT) issued by the Central Board of Excise and Customs was published on 03.08.2001.. The above two cases were considered by a 3 Judge bench of the Supreme Court in Ganesh Das Bhoj Raj (3 supra). The Supreme Court overruled New Tobacco Co. (1998) 97 E.L.T. 388 (SC) (1 supra) and approved the decision in Pankaj Jain Agencies ((1994) 5 SCC 198 supr .....

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t is required to presume its contents as genuine u/s.35 and 38 r/w S.81 of the Evidence Act, 1872 unless the contrary is proved. It held that the original copy of the notification dated 04.02.1987 published in the Gazette on the said date was produced before it and therefore it rejected the contention that the notification dated 04.02.1987 was not published in the Gazette on the same day. In the present case, the attested copy of the Gazette of India dated 03.08.2001 containing publication of th .....

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cision of the Supreme Court in Ganesh Das Bhoj Raj (3 supra), we respectfully dissent from the decision of the Karnataka High Court in Param Industries Ltd (2 supra), and hold that the said notification was published on 03.08.2001. We reject the contention of the petitioners that it was not published on 03.08.2001 and was not made available for sale till 06.08.2001. (emphasis supplied) While the Division Bench of this Court, in M/s. K.G.F. Cotton Pvt. Ltd(Judgment in W.P. No.18440 of 2001 and ba .....

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001 dated 03.08.2001 has been held to have come into force only on or after 06.08.2001, and not on 03.08.2001. As Section 14(2) prescribes the mode of publication, of a notification issued thereunder, to be made in the Official Gazette, the submission of Sri P.S.P. Suresh Kumar, Learned Standing Counsel, that Notification No.36/2001 came into force on 03.08.2001 when it was published in the Official Gazette and not on 06.08.2001 when it was offered for sale to the general public, cannot be said .....

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6.08.2001 when it was offered for sale to the general public, it must be borne in mind that there is no constitutional or statutory prescription on the effect of the law pronounced by a Division Bench, in relation to a case raising the same point subsequently before a Division Bench of the same or smaller number of Judges, and the point is governed entirely by the practice of Courts in India, sanctified by repeated affirmation for over a century. It is in order to guard against the possibility o .....

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that it was often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar; and the inviolable recourse was to apply the earliest view as the succeeding ones would fall in the category of per incuriam. While the earlier Division bench judgments of the Supreme Court on a question of law may be required to be followed by the High Court, and not a latter Division bench judgment of the Supreme Court which did not notice the earlier Divi .....

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ification came into force only on 03.08.2001, and not thereafter on or after 06.08.2001? Would such an exercise not amount to the High Court sitting in judgment over the order of the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.)? Can this Court hold that the Division Bench judgment of the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.) is per incuriam as it was rendered in ignorance of the earlier Division Bench judgments of the Supreme Court in M/s. Pankaj .....

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.2001 for the reason that it was published in the Official Gazette on that day, as that would fall foul of the judgment of the Supreme Court, in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.), wherein the very same Customs Notification No.36/2001 was held to have come into force on or after 06.08.2001, and not on the date of its publication as reflected in the Gazette as 03.08.2001. Article 141 of the Constitution stipulates that the law declared by the Supreme Court shall be binding on all co .....

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f the Court (Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur AIR 1970 SC 1002 ). The decisions of the Supreme Court are of significance not merely because they constitute an adjudication of the rights of the parties and resolve the disputes between them, but also because, in doing so, they embody a declaration of law operating as a binding principle in future cases. The law declared by the Supreme Court binds all Courts in India (Rajeswar Prasad Misra v. State of W.B AIR 1965 SC 1 .....

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te of Orissa v. Dhaniram Luhar (2004) 5 SCC 568 ). Blacks Law Dictionary defines a decision as a determination arrived at after consideration of facts and, in legal context, law; and an opinion as the statement by a Judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based. A Decision is not necessarily synonymous with opinion. A decision of the Court is its judgme .....

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o force, (their appeal having been rejected by the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.)), the High Court is bound to follow the said decision, and hold that Customs Notification No.36/2001 came into force on or after 06.08.2001, and not earlier on 03.08.2001. Judicial discipline requires, and decorum known to law warrants, that appellate directions should be followed. In the hierarchical system of courts which exists in this country it is necessary for each lower tie .....

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