ORDER
Harish Chander, Member (J)
1. Collector of Customs, Calcutta has filed the above captioned 8 appeals as well as stay applications and these stay applications have come up for hearing before the Bench. Since the issue involved in all the above captioned stay applications is similar, the same are being disposed of by this common order.
2. For the sake of brevity, relevant facts are given in appeal No. C/2037/90-B2 in the case of Collector of Customs, Calcutta v. SAIL. The respondents had imported Nimonic Shear Cutting Blades which were meant for use in shearing machines for cutting hot steel bloom in the blooming and billet mill in the steel plant. In the bill of entry filed by the respondents, the respondents had claimed assessment under Heading 8208.00 read with Notification No. 154/86-Cus., dated 1st March, 1986 read with Heading 84.62. The Assistant Collector had rejected the refund claim and had denied the benefit of exemption notification and being not satisfied, an appeal was filed before the Collector (Appeals) and the Collector (Appeals) had extended the benefit of Notification No. 154/86-Cus., dated 1st March, 1986.
3. Being aggrieved from the aforesaid order, the revenue has filed an appeal before the Tribunal.
4. Shri M.S. Arora, the learned JDR who has appeared on behalf of the applicant, pleaded that the applicant’s case is fully covered by a judgment of the Bombay High Court in the case of Vishal Electronics Pvt. Ltd. v. Union of India reported in 1989 (44) ELT 420 (Bom.), where the Bombay High Court had held that the exemption notification not construable to apply to goods not specified therein. In the Notification No. 172/77-Cus., dated 8th August, 1977 there was only mention of TV camera and there was no mention of lenses and as such the Hon’ble High Court had held that the benefit of notification to Television Cameras under Heading 85.15.1 not extendable to lenses covered under Heading 90.02 on the presumption of Central Government intendment to extend benefit of instruments to components. He laid special emphasis on Para No.10 of the said judgment. He argued that the machines were specified under Heading 8462.49 and the goods qualified assessment under Heading 82.08 and the specific sub-heading was 8208.10. He argued that there is no dispute as to the classification of the goods. The only issue to be decided by the Tribunal is wether in terms of an exemption notification issued under Section 25 of the Customs Act the benefit for effective rate of duty has been given to a machine, whether the parts are also entitled to the same rate under Heading 8208.1.0. Shri Arora argued that prima facie the applicant has got a good case on merits and also the other seven stay applications which are under consideration before the Bench. He has pleaded that since prima facie the revenue appears to have a good case on merits and there is a judgment of the Bombay High Court in their favour, slay may be granted. Shri Arora further argued that this Tribunal has taken the view that while disposing of the stay applications, prima facie merits of the case have to be looked into. In support of his argument, he has referred to a judgment of the Tribunal in the case of Jayshree Insulators Ltd. v. Collector of Central Excise, Calcutta reported in 1987(28) ELT 279 (Tribunal) and Delhi High Court judgment in the ease of Uptron Powertronics v. Collector of Central Excise, Meerut reported in 1987 (28) ELT 61 (Delhi). He has pleaded for the grant of stay in the above captioned slay applications.
5. Shri V. Sridharan, the learned advocate who has appeared on behalf of M/s. Tata Engineering and Locomotive Co. Ltd., in reply to Shri M.S. Arora, the learned JDR’s arguments, first refers to Paras No. 11 and 12 of the judgment cited by the learned JDR in the case of Vishal Electronics Pvt. Ltd. v. Union of India reported in 1989 (44) ELT 420. Shri V. Sridharan pleaded that there are contrary judgments on the issue which were not brought to the notice of the Bombay High Court and as such, the judgment of the Bombay High Court does not become a precedent. Shri Sridharan argued that for parts the same rate is to apply which is to apply for machines. He has referred to Section 12 of the Customs Act, 1962. Section 12 reads as under :-
“12(1). Dutiable goods. – Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the |Customs and Tariff Act, 1975 (51 of 1975)]; or any other law for the time being in force, on goods imported into, or exported from India.”
Shri Sridharan, the learned advocate referred to a judgment of the Bombay High Court in the case of Apar Private Ltd. and Others v. Union of India and Others reported in 1985 (22) ELT 644 (Bom.) and laid special emphasis on Paras No. 7 and 42 of the said judgment, where in Para No. 7 the Bombay High Court had held that “…Once exemption is granted under Section 25(1) it would mean that as envisaged by Section 12 of Customs Act, the exemption notification “provides otherwise” and the goods are not chargeable to duty under Section 12…” In Para No. 42 similar observations were made. Shri Sridharan argued that Vishal Electronics judgment of the Bombay High Court reported in 1989 (44) ELT 420 is sub silentio and is not binding. He has also referred to a judgment in the case of Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors v. Union of India and Ors reported in 1985 (4) ECC 111 and has laid special emphasis on Paras 90 and 110. Shri Sridharan referred to another judgement in the case of Collector of Central Excise, Rajkot v. Surgichem reported in 1987 (27) ELT 548 (Tribunal) and laid special emphasis on Para No. 5. He has also referred to the following judgments :-
(i) 1987 (32) ELT 556 (Bom.) – Assistant Collector of Central Excise, Kalyan Division and Anr. v. Dipsi Chemicals Pvt. Ltd. and Anr (Para 11)
(ii) 1989 (40) ELT 388 (Tribunal) – Hindustan Lever Limited v. Collector of Central Excise (Paras 5 and 8)
(iii) 1988 (38) ELT 741 (SC) – Collector of Central Excise v. Park Exports Pvt. Ltd. (Para 12) (Notification to be read with the Act)
Shri Sridharan pleaded that in view of the judgments cited by him, the judgment in the case of Vishal Electronics v. U.O.I. reported in 1989 (44) ELT 420 does not become a precedent and this Tribunal should not follow the same. Alternatively on prima facie merits of the case, Shri Sridharan argued that the respondents had claimed assessment under Heading 9806, whereas the revenue had assessed the same under Heading 8208.10 and argued that the difference without extending the benefit of Notification No. 154/86-Cus., dated 1st March, 1986 is very marginal. He has pleaded for the rejection of the stay applications and also stated that the financial position of the respondents is very sound.
6. Shri Sanjay Grover, the learned counsel for the Steel Authority of India Ltd. pleaded that he adopts the same arguments which have been adopted by Shri Sridharan, the learned advocate for M/s. Tata Engineering and Locomotive Engineering Co. Ltd. On the financial position of the respondents, Shri Grover pleaded that the financial position of (he respondents is very sound. Shri Grover pleaded for the rejection of the stay applications.
7. Shri M.S. Arora, the learned JDR in reply to the arguments of Shri Sridharan, the learned advocate and Shri Sanjay Grover, the learned advocate, pleaded that the judgments cited by Shri Sridharan are in respect of other issues. There is no direct judgment on the subject. He argued that a particular decision is only relevant for the point in dispute and the points decided by the court. He has referred to a judgment of the Supreme Court in the case of Somwati v. State of Punjab reported in AIR 1963 SC 151. He has argued that this judgment: was referred to by the Tribunal in the case of Collector of Central Excise v. Narain Dass Saraf reported in 1985 (22) ELT 823. He has also referred to another judgment of the Tribunal in the case of Govindraju and Anr v. Collector of C. Ex., Bangalore reported in 1985 (22) ELT 546 (Tribunal) where it was held that “Merely culling out a few sentences here and there from a judgment does not amount to citation of a precedent of binding nature.” Shri Arora argued that in the case of Apar Private Ltd. and Ors v. Union of India and Others reported in 1985 (22) ELT 655 cited by the learned advocate, this issue was not before the Bombay High Court. Shri Arora argued that the alternative plea of the respondents for classification under Heading 9806.00 is not acceptable, as it is a residuary heading. When there is a heading the same has to be applied. Shri Arora argued that the Tariff should be interpreted in such a way that: the heading does not become redundant. He has pleaded for the grant of stay.
8. We have heard both the sides and have gone through the facts and circumstances of the case. The revenue’s main reliance is on the judgment in the case of Vishal Electronics Pvt. Ltd. v. Union of India reported in 1989 (44) ELT 420. Paras No. 10 and 11 from the said judgment are reproduced below :-
“10. The words “rale of duty applicable to” in Heading No. 90.02 can, 1 think, be read as referring only to the rate of duty specified in other headings in the First Schedule to the Customs Tariff Act. The words cannot be read as meaning the rate of duty which, from time to time, is leviable, having regard to an exemption, it any, given under the provisions of Section 25.”
“11. It is relevant also to note that under Sub-section (1) of Section 25 the Central Government must set out in the notification thereunder the “goods of any specified description” which are exempted from customs duty. It would, therefore, be impermissible to read into an exemption notification under Section 25 goods which are not, in fact, specified therein. This is in accord with the general principle of construing an exemption notification. It cannot be read as conferring a benefit upon goods or persons not described therein. It must be read as covering only such goods or persons as are described in it.”
This judgment of the Bombay High Court is a single Judge decision. The judgment cited by Mr. V. Sridharan, the learned advocate in the case of Apar Private Ltd. and Others v. U.O.I and Ors reported in 1985 (22) ELT 644 is a Full Bench decision. Relevent ex-tracts from Para Nos. 7 and 42 from the said judgment are reproduced below :-
“7…Once exemption is granted under Section 25(1) it would mean that as envisaged by Section 12 of Customs Act, the exemption notification “provides otherwise” and the goods are not chargeable to duty under Section 12….”
“42…In other words, if the Customs Act read with the notification issued under Section 25(1) thereof provides otherwise, duties of customs shall not be levied under Section 12 and consequently Section 15 does not come into operation in respect of these goods and the question of valuation of the goods under Section 14 does not arise for the purpose of assessment. That is what the court held in Sylvania Laxman’s case.”
The notification in this case was issued under Rule 8 of the Central Excise Rules. The observations of the Supreme Court in the case of Orient Weaving Mills (P) Ltd. and Ors v. Union of India and Others reported in 1978 (2) ELT J-311 are as under :-
“By virtue of Section 38 all rules made and notifications issued are required to be laid on the table of the House, and become part of the statute itself. They, therefore, are constitutional and valid and do not violate Article 14 or 19 of the Constitution.”
This Tribunal had the occasion to give its observations in respect of sub silentio decision in the case of Collector of Central Excise v. Surgichem reported in 1987 (27) ELT 548. Relevant extract from Para No. 5 from the said judgment is reproduced below :-
“5. …We are not inclined to follow the earlier judgment of the Tribunal in the case of J.L. Morison, Son and Jones (India) Ltd., Bombay reported in 1984 (15) ELT 251 in which case the Tribunal had ordered the classification of Adhesive Plaster B.P.C. under Item 14E. The judgment was based on the statement of Shri D.B. Engineer, Advocate. It was in the nature of the concession. In ‘Sal-mond on Jurisprudence’ Twelfth Edition Section 27 Page 153 it is opined that “decision passed sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.”
“A good illustration is Gerard v. Worth of Paries Ltd. (K). There, a discharged employee of a company, who had obtained damages against the company for wrongful dismissal, applied for garnishee order on a bank account standing in the name of the liquidator of the company. The only point argued was on the question of the priority of the claimant’s debt, and, on this argument being heard, the Court of Appeal granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in the subsequent case before the Court of Appeal (1), the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R. said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, it was not binding and would not be followed.
The rule that a precedent, sub silentio is not authoritative goes back at least to 1661 (m), when counsel said: “An hundred precedents sub silentio are not material”; and Twisden, J., agreed : “Precedents sub silentio and without argument are of no moment.” In view of the above discussion we are not inclined to follow the earlier judgment of the Tribunal in the case of J.L. Morison, Son and Jones Pvt. Ltd. Shri Sunder Rajan during the course of arguments had also argued that the revenue does not press its classification under Tariff Item 14E of the Central Excise Tariff and he leaves it to the Bench. The Adhesive Plastic B.P.C. Tape does not possess any medicinal or therapeutic properties. It is a surgical dressing in Pharmaceutical and commercial parlance. Accordingly, we hold that the adhesive plastic B.P.C. manufactured by the respondents falls under Tariff Item 68. In the result the appeal filed by the revenue fails.”
9. In view of the above discussion, we are of the view that binding effect of the Vishal Electronics Pvt. Ltd. judgment reported in 1989 (44) ELT 420 is arguable. The matters amsubjudice. It will not be proper for us to give our further observations. Prima facie merits of the case in favour of the revenue are thus arguable. It is not disputed that the financial position of the respondents is very sound.
10. Keeping in view the totality of the facts and circumstances of the case, we are of the view that the facts and circumstances do not justify the grant of stay. The above captioned eight stay applications are dismissed. While disposing of the stay applications, we have duly taken into consideration the financial position of the respondents.
11. Before we part with the matters, we would like to make further observations that while disposing of the stay applications which are in the nature of interlocutory orders, the facts and circumstances of each and every case have to be looked into.
12. Both the sides plead before us that a very large number of matters are pending before the Tribunal and there is also recurring effect and as such early hearing be ordered in these cases. In the interest of justice, we order that the above captioned appeals will be heared on merits on 19th October, 1990.