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TMI Blog2019 (12) TMI 1685X X X X Extracts X X X X X X X X Extracts X X X X ..... l precedents during the course of the appeal proceedings. It was particularly mentioned to this Hon'ble Tribunal that the issue is squarely covered by the judgement given by a coordinate bench of the Hon'ble Chennai Tribunal in the case of IndusInd Bank Ltd. vs. Commissioner of Service Tax, Chennai [2019 (25) G.S.T.L.220 (Tri.- Chennai)]. 5. The assessee in the aforesaid decision (M/s. IndusInd Bank Ltd.) was engaged in the business of providing loans for purchase of vehicles, which is similar to the Appl;icant5's present case. During audit of accounts it was alleged that the assessee received certain amount towards commission from automobile dealers through discounts, and had not discharged services tax on the commission earned. Revenue was of the view that the amount so received by the assessee should be subjected to service tax. 6. While allowing the appeal, the Hon'ble Chennai Tribunal held that discount received by Bank from automobile dealers cannot be treated as a consideration for service. It was observed that merely because a vehicle is intended to be purchased from a dealer, the Bank would not disburse the loan. The Bank has to be satisfied with other conditions lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Pvt Ltd [2010 (252) ELT 168 (Bom)] D. Decisions relied upon in the Appeal Order are distinguishable on facts. E. Appeal Order is based on an incorrect assertion of the Respondent F. Hon'ble Technical member has taken a contrary position on facts in Tata Motors. 4.1 We have heard Shri Abhishek Rastogi, Advocate for the Applicant and Shri Kishori Lal, Principal Commissioner, Authorized Representative for the revenue. 4.2 Arguing for the applicants learned advocate submitted that- * they had in their written submissions and during the course of arguments relied upon the decision of the Chennai Bench of CESTAT in case of IndusInd Bank Ltd, which is on the same subject. Though this decision has been recorded by the bench while recording his submissions there is no separate finding recorded in respect of this decision in the impugned order tribunal. * As have been held by the Apex Court in case of Honda Siel Power Products Ltd and in other decisions of CESTAT referred by them in the application, non consideration of the decision of the co-ordinate bench on the same issue, is an error apparent on record, warranting the recall of order for fresh consideration. * Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on needs to be dismissed. 5.1 We have considered the impugned order passed by us along with the submissions made by the Applicant in his application and during the course of arguments. 5.2 In "Kranti Associates (P) Ltd. v. Masood Ahmed Khan" reported in (2010) 9 SCC 496 = 2011 (273) E.L.T. 345 (S.C.)", wherein, on the requirement of disclosing reasons by a quasijudicial authority in support of its decision, the Hon'ble Supreme Court has summarized the principles as follows : 51. Summarizing the above discussion, this Court holds : (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". 5.3 In case of Saheli Leasing & Industries Ltd [2011 (253) ELT 0705 (SC)], Hon'ble Supreme Court has laid down as follows: 6.We, therefore, before proceeding to decide the matter on merits, once again would like to reiterate few guidelines for the Courts, while writing orders and judgments to follow the same. 7. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case :- (a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order. (b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion. (c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndusInd Bank Ltd. Even if for the moment the argument as made in the application for rectification of the order we are of the view that the final conclusions arrived by us in the impugned order will not change. The decision of IndusInd Bank have been distinguished by the learned Authorized Representative during the course of argument as has been recorded by us in para 4.3 of the impugned order. Once the decision has been distinguished, we have recorded the same and proceeded to decide the matter giving our reasons following the applicable decisions in our limited understanding of law, to arrive at the conclusions. Such conclusions could be challenged in the appeal before the Appellate Authority and not by way of an application for rectification of mistake. Hon'ble Supreme Court has in case of Steel Authority of India Ltd vs Sales Tax Officer emphasized on links between the reasoning and conclusion stating as follows: "10. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. (See Raj Kishore Jha v. State of Bihar 2003 (11) SCC 519) 11. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record." 5.8 Hon'ble Supreme Court has distinguished its decision in the case of Honda Siel Power Pvt Ltd, in case of RDC Concrete and state the law as follows: "20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008 (221) E.L.T. 11 (S.C.), is concerned, there also the Tribunal had not considered certain material which was very much on record and thereby it committed a mistake which was subsequently rectified by considering and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that since the subvention income is nothing but interest against the advances the same should not be subjected to service tax. We are not in agreement with the submissions made by the appellants. Once we hold that the amounts received by the appellants as "subvention charges" are consideration for providing the business auxiliary services, the manner in which they are determined are irrelevant. They may be equivalent to difference of their interest earning on loan extended in normal course and under the special scheme or can be more or less than that is immaterial for treating it is as consideration for providing the service. Same view has been expressed by the tribunal in case of HUDCO [2012 (26) STR 531 (T-Mum)] in following words: "14. The two decisions of the European Court cited by the ld. Counsel are not appropriate since they do not really relate to Banking & other Financial Services. Further without comparing statutory provisions, it will not be appropriate to rely upon the decision of the European Court, for Indian cases. The appellants also relied upon the decision of Hon'ble High Court of Madras in the case of Edupuganti Pitchayya & Ors v. Gonuguntla Venkata Ranga R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussed that the prepayment charges are the charges for allowing the facility of prepayment of loan. Similarly, reset charges are the charges levied by the appellant for restructuring the interest rate. The method of calculating the charges has no bearing on the nature of service provided. Just because the charges have been calculated based on the outstanding loan amount and the interest rate prevalent at that time will not change the head of income from service charges to interest. 18.4 Interest is nothing but the time-compensation for somebody's money being retained by somebody else. The longer the period of retention, the higher will be the interest amount. In this background, the prepayment charges can never be considered to be in the nature of interest as prepayment only means payment before time. This should ideally result in refund of interest and not the demand for more interest because the borrowed money is being paid back before time." We have followed the said decision in case Bank of Baroda [Final Order No A/86424/2019 dated 21.08.2019] and in case of LIC Housing Finance Ltd [Final Order No A/86425-87428/2019 dated 21.08.2019]. Thus we are not in position to agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. "......... In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297- 98, para 578) per incuriam has been elucidated as under: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.); or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force." 140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution Bench decision in Kalyani, which is the binding authority on the point." 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. 146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. 147. A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi (3) and Others (2006) 4 SCC 1 is binding on all courts including this court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."
149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam."
6.1 In view of the discussions as above, the Rectification of Mistake Application filed by the Applicant is disposed of as stated in para 5.11, supra.
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