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TMI Blog2002 (1) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... p; That reference is invited and reliance is placed on the decision of the Hon'ble Supreme Court in the case of Sun Exports Corporation, Bombay v. Collector of Customs, Bombay & Anr. reported in 1997 (93) E.L.T. 641 (S.C.) = (l997) 6 SCC 564 wherein on a similar contention being raised on behalf of the Revenue, the Hon'ble Supreme Court observed and held as under :- "...No doubt it was contended on behalf of the Revenue that the contrary view taken by the Tribunal has been challenged in this Court which was rejected in limine at the admission stage. We do not think that the dismissal at the admission stage can be relied upon as a binding precedent. Even assuming that there are two views possible, it is well settled that one favourable to the assessee in matters of taxation has to be preferred". (C) That in the case of Supreme Court Employees' Welfare Association case; (1989) 4 SCC 187, the Hon'ble Supreme Court in the context of special leave petitions preferred under Article 136 of the Constitution clearly elucidated and laid down the principle of law in this regard as under :- "When Supreme Court giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch [1999 (106) E.L.T. 269] and against which the appeal to the Supreme Court was dismissed in limine without even a notice to the other side. (I) That there was no dispute that the clearances made during the relevant period by the applicant/appellant were of the materials covered by Tariff Headings 72.15 and 73.09 and not the "waste and scrap' under sub-heading 7203.00 and excisability could not be attached to these clearances as doing so would be contrary to the decision of the Hon'ble High Court of Kolkata in the case of S.S. Jain v. Union of India as these were not 'waste & scrap' at all and what was not 'waste and scrap' could not be subjected to excise duty. (J) That the observation of the learned Assistant Collector of Central Excise in his order in original dt. 16-1-87 that the assessee cleared plate cuttings, angle cutting, round cutting, wire rope cutting, which are evidently scrap and cannot be used as such without re-rol1ing/remelting is factually incorrect and legally unsustainable in view. (K) That in the process of appeal having been decided on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on [1997 (93) E.L.T. 641 (S.C.) = 1997 (6) SCC 564] and Pujari Bai etc. [AIR 1989 SC 1764]. 4.Learned Counsel also refers to the judgment of the Hon'ble Gujarat High Court in the case of Chjay Industries Pvt. Ltd., Bombay & Anr. v. Union of India & Ors. reported in 1988 (34) E.L.T. 42 (Guj.). He also refers to the decision of the Apex Court in the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi & Ors. reported in AIR 1978 SC 851. Reference was also made to the Karnataka High Court judgment in the case of Kemwell (P) Ltd. v. U.O.I. [1987 (31) E.L.T. 669 (Kar.)]. Learned Counsel submits that there was denial of natural justice inasmuch as approval of Classification List was done without verification; that a lot of case-laws exist in which it has been held that the Appellate Tribunal has powers to hear the Applications for correcting the mistakes, if any. He submits that Section 35C of the Central Excise Act, 1944 is wide enough, whereunder not only the mistake of fact but also the mistake of law, can be corrected. He also submits that since the Order of the Tribunal, dismissing the appeal against the impugned Order of the authorities below, was upheld by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the case of Mohinder Singh Gill v. The Chief Election Commissioner AIR 1978 SC 851 held that when a statutory functionary makes an Order based on certain grounds, its validity must be judged by reasons so mentioned and cannot be supplemented by fresh reasons in the shape of Affidavits or otherwise. 6.4.Learned Counsel submitted that in the case of Sun Export Corporation v. CC, the Hon'ble Supreme Court [1997 (93) E.L.T. 641 (S.C.) = 1997 (6) SCC 564] held 'the majority view of CEGAT appears to have been influenced by the fact that Civil Appeal filed against an earlier decision of CEGAT which had taken a similar view was dismissed by the Supreme Court at the admission stage. Dismissal at the admission stage cannot be relied upon as a binding precedent. Even assuming that there were two views possible, the one favourable to the assessee in matters of taxation has to be preferred. Moreover, presumably the amendment to exemption Notification No. 234/82 by a subsequent Notification No. 6/84, dated 15-2-84 was not before Supreme Court for consideration. The majority view had also failed to take note of the subsequent amendment to the main exemption notification as well as the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayammed and Others reported in 2000 (6) SCC 359 was decided on 19-7-2000. Further, in the case of Sun Exports, there were two notifications which had a bearing in the case which were not before the Apex Court as observed by the Apex Court in the case of Sun Exports, whereas no such thing was before the Apex Court in the case of Kunhayammed case. Since the case of Kunhayammed is of a later date, therefore, it has to be followed and has been so followed by the Tribunal and hence the ratio of Sun Exports case does not apply to the present case. 10.In the case of Supreme Court Employees Welfare Association cited by the Counsel, it was a case of Writ Petition under Article 226 and not a case in appeal and hence facts in the two cases are different. Moreover, the case is of July 24, 1989 whereas the case relied upon by the Tribunal was decided on 19-7-2000. This is equally applicable to the case of Pujari Bai which was decided on 12-7-1989. 11.In so far as the decision in the case of G. Balakrishna and Brothers (P) Ltd. is concerned, we note that in that case, the Tribunal had not followed the decision of the Apex Court, whereas in the present case, the Tribunal had followed the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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