{"id":77757,"date":"1984-11-30T00:00:00","date_gmt":"1984-11-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/assistant-collector-of-central-vs-dunlop-india-ltd-and-ors-on-30-november-1984"},"modified":"2015-05-12T21:37:26","modified_gmt":"2015-05-12T16:07:26","slug":"assistant-collector-of-central-vs-dunlop-india-ltd-and-ors-on-30-november-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/assistant-collector-of-central-vs-dunlop-india-ltd-and-ors-on-30-november-1984","title":{"rendered":"Assistant Collector Of Central … vs Dunlop India Ltd. And Ors on 30 November, 1984"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Assistant Collector Of Central … vs Dunlop India Ltd. And Ors on 30 November, 1984<\/div>\n
Equivalent citations: 1985 AIR 330, \t\t 1985 SCR (2) 190<\/div>\n
Author: O C Reddy<\/div>\n
Bench: Reddy, O. Chinnappa (J)<\/div>\n
           PETITIONER:\nASSISTANT COLLECTOR OF CENTRAL EXCISE CHANDAN NAGAR, WEST BE\n\n\tVs.\n\nRESPONDENT:\nDUNLOP INDIA LTD. AND ORS .\n\nDATE OF JUDGMENT30\/11\/1984\n\nBENCH:\nREDDY, O. CHINNAPPA (J)\nBENCH:\nREDDY, O. CHINNAPPA (J)\nSEN, A.P. (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1985 AIR  330\t\t  1985 SCR  (2) 190\n 1985 SCC  (1) 260\t  1984 SCALE  (2)819\n CITATOR INFO :\n F\t    1985 SC1289\t (10)\n R\t    1986 SC 614\t (5,6)\n RF\t    1988 SC2010\t (12)\n\n\nACT:\n     Constitution of India 1950 Articles 226 and 141\n     Interim orders in writ petition-Grant OF-Situations and\ncircumstances-What are-Matters\tinvolving public revenue-Not\nsufficient showing  a prima  facie case-Furnishing  of\tbank\nguarantee not a circumstance-Balance of convenience to be in\nfavour of  grant of interim order-Likelihood of prejudice to\npublic interest to be shown.\n     Supreme Court  decisions binding on all courts-Judgment\nper  incuriam\tPrinciple  of-High  Court  not\tentitled  to\ndisregard  judgment   of  Supreme   Court  labeling  It\t per\nincuriam.\n\n\n\nHEADNOTE:\n     The Government  of India  by a notification dated April\n6,1984, exempted  tyres from  a certain percentage of Excise\nDuty to\t the extent  that the  manufacturers had not availed\nthemselves of  the exemption  granted  under  certain  other\nearlier notifications.\n     The Customs  and Excise Department was of the view that\nthe Respondent-company\twho was\t a  manufacturer  of  Tyres,\nTubes and  various other rubber products was not entitled to\nthe aforesaid  exemption as it had cleared the goods earlier\nwithout paying\tCentral Excise\tDuty but  on furnishing Bank\nGuarantees under various interim-orders of courts.\n     The Company  claimed the  benefit of  exemption to\t the\ntune of about Rs. 6 crores and filed a Writ Petition in the-\nHigh Court  and sought\tan  interim  order  restraining\t the\nCentral Excise\tauthorities from  the levy and collection of\nexcise duty. The High Court held that a prima facie case had\nbeen made  out in  favour of  the company  and by an interim\norder allowed  the benefit  of the  exemption to the tune of\nabout Rs.  2 crores  and directed that the goods be released\non furnishing a Bank Guarantee.\n     In\t the   Department's  appeal,   the  Division   Bench\nconfirmed the  above order with a slight modification to the\neffect that  the Collector of Central Excise could encash 30\nper cent of the Bank Guarantee.\n     Allowing the appeals by the Department, this Court,\n^\n     HELD: 1.  The orders of the Single Judge as well as the\nDivision Bench\tare wholly  unsustainable and  should  never\nhave been made, Even assuming the\n191\ncompany had  established a  prima facie\t case, it  was not a\nsufficient justification  A for\t granting the  said  interim\norders. There  was no question of any balance of convenience\nbeing in  favour of the respondent-Company, it was certainly\nin favour of the Government of India. [201B-C]\n     2. Governments  are not  run on  mere Bank\t Guarantees.\nVery often some courts act as if furnishing a Bank Guarantee\nwould meet  the ends  of justice.  No Governmental business,\nfor that  matter no  business of any kind can be run on mere\nBank Guarantees. Liquid cash is necessary for the running of\na Government as indeed any enterprise. [201C]\n     3. Where matters of public revenue are concerned, it is\nof utmost  importance that  interim orders  are\t not  to  be\ngranted merely because prima facie case has been shown. More\nis required.  The balance  of convenience must be clearly in\nfavour of  the making  of an  interim order and there should\nnot be the slightest indication of a likelihood of prejudice\nto the public interest. [201D1\n     4. Article\t 226  is  not  meant  to  short\t circuit  or\ncircumvent statutory  procedures. It is only where statutory\nremedies are  entirely ill-suited  to meet  the\t demands  of\nextraordinary situations,  as for  instance where  the\tvery\nvires of  the statute  is in  question or  where private  or\npublic\twrongs\t are  so   inextricably\t mixed\tup  and\t the\nprevention of  public injury  and the  vindication of public\njustice require\t it, that  recourse may\t be had to Art. 226.\nThe Court  must also  have good and sufficient reason to by-\npass the  alternative remedy  provided by  statute.  Matters\ninvolving the revenue where statutory remedies are available\nare not\t such matters.\tThe vast  majority of  the petitions\nunder Art. 226 are filed solely for the purpose of obtaining\ninterim orders\tand thereafter to prolong the proceedings by\none device  or the other. This practice needs to be strongly\ndiscouraged. [194F-H; 195A] E\n     5. There  are, cases  which demand\t that interim orders\nshould be  made in  the interests  of justice.\tWhere  gross\nviolations of the law and injustices are about to be, or are\nperpetrated,  it  is  the  bounden  duty  of  the  court  to\nintervene and  give appropriate\t interim  relief.  In  cases\nwhere denial  of interim relief may lead to public mischief,\ngrave irreparable private injury, or shake a citizen's faith\nin the\timpartiality of\t public administration,\t a court may\nwell be\t justified in granting interim relief against public\nauthority.\n     Samarias Trading  Company Pvt.  Ltd. v.  S. Samuel\t and\nOrs.,<\/a> [1985]  2 S.C.R. 24, Siliguri Municipality v. Amalendu\nDas,<\/a> [1981]  2 SCC  436, Titaghur  Paper Mills\tCo. Ltd.  v.\nState of  Orissa,<\/a> [1983]  2 SCC 433, Union of India v. Oswal\nWoollen Mills  Ltd.,<\/a> [1984]  2 SCC 646 and Union of India v.\nJain Shudh  Vanaspati Ltd., C.A. No.<\/a> 11450 of 1983; referred\nto.\n     6. In  India, under  Art. 141,  the law declared by the\nSupreme Court  shall be binding on all courts and under Art.\n144 all\t authorities civil  and judicial shall act in aid of\nthe Supreme Court. [200B]\n     7. In the hierarchical system of Courts which exists in\nour country it is\n192\nnecessary for  each lower tier, including the High Courts to\naccept loyally the decisions of the higher tiers. The better\nwisdom of the Court below must yield to the higher wisdom of\nthe Court above. [199E-F]\n     8. The label per incuriam is relevant only to the right\nof an  appellate court\tto decline  to follow one of its own\nprevious decisions, not to its right to disregard a decision\nof a  higher appellate\tcourt or  to the right of a judge of\nthe High Court to disregard a decision of the Supreme Court.\n[199H; 200A]\n     Cassel and\t Co. Ltd.  v. Broome,  [1972] A\t C. 1027 and\nRookes v. Barnard, [1964] A.C. 1129, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 4742-43
\nof 1984.\n<\/p>\n
     a Appeal  by Special  leave from the Judgment and order
\ndated the  9th August,\t1984 of\t the Calcutta  High Court in
\nFMAT No. 2139 of 1984 and 2023 of 1984.\n<\/p>\n
     K.\t Parasaran,   Attorney\tGeneral,   V.  J.   Francis,
\nChandrasekharan, N.M.  Popli and Miss Savitha Sharma for the
\nAppellant.\n<\/p>\n
     F. S.  Nariman, D.\t N. Gupta  and Harish  Salve for the
\nRespondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     CHlNNAPPA REDDY,  J. It  is indeed a great pity-and, we
\nwish we\t did not have to say it but we are afraid;we will be
\nsignally failing  in our  duty if  we do  not  do  so  -some
\ncourts, of  late, appear  to have  developed an\t unwarranted
\ntendency to grant interim orders-interim orders with a great
\npotential for  public mischief-for  the mere asking. We feel
\ngreatly disturbed.  We find  it more  distressing that\tsuch
\ninterim orders,\t often ex-parte\t and non-speaking,  are made
\neven by\t the High  Courts while\t entertaining writ petitions
\nunder Art. 226 of the Constitution, and in the Calcutta High
\nCourt, on oral application too. Recently in Samaries Trading
\nCompany Pvt.  Ltd. v. S. Samuel & Ors<\/a>(l). we had occasion to
\ncondemn and  prohibit this  practice  of  entertaining\toral
\napplications under  Art.  226  and  passing  interim  orders
\nthereon. In  several other  cases, Siliguri  Municipality v.
\nAmelendu Das<\/a>(2),  Titagur Paper\t Mills\tCo.  Ltd.  State  of
\nOrissa,(3) Union
\n(1) [1985] 2 S.C R. 24.\n<\/p>\n
(2) [1983] 2 S.C.C 436
\n(3) [1983] 2 S.C.C 433
\n193<\/span>
\nOf India  v. Oswal  Woollen Mills Ltd(l)., Union of India v.
\nJain Shubh  A Vanaspati\t Ltd.<\/a>(a), this\tCourt was  forced to
\npoint out how wrong it was to make interim orders so soon as
\nan application\twas but presented, when a second thought (or
\na second’s  thought) would  expose  the\t impairment  of\t the
\npublic interest and often enough the existence of a suitable
\nalternative remedy.  Despite the fact that we have set our 8
\nface against  interfering with\tinterim orders passed by the
\nHigh Courts  and made  it practically a rigid rule not to so
\ninterfere, we were constrained to interfere in those cases.\n<\/p>\n
     In Siliguri Municipality v. Amalendu Das,<\/a> (supra) A. P.
\nSen and M. P. Thakkar, JJ. had to deal with an interlocutory
\norder passed  by the  Calcutta High  Court  restraining\t the
\nSiliguri   Municipality\t   from\t  recovering   a   graduated
\nconsolidate rate  on the  annual value of buildings in terms
\nof the\tamended provisions  of the  Bengal Municipal Act. We
\nreiterate the following observations made therein:
\n\t “We  are constrained to make the observations which
\n     follows as\t we do\tfeel dismayed at the tendency on the
\n     part of  some of the High Courts to grant interlocutory
\n     orders for\t the mere  asking. Normally,  the High Court
\n     should not, as a rule, in proceedings under Article 226
\n     of the  Constitution grant\t any stay of recovery of tax
\n     save under very exceptional circumstances. The grant to
\n     stay in  such matters, should be an exception and not a
\n     rule.\n<\/p>\n
\t“It is needless to stress that a levy or impost does
\n     not become bad as soon as a writ petition is instituted
\n     in order  to assail  the validity\tof the levy. So also
\n     there is no warrant for presuming the levy to be bad at
\n     the  very\t threshold  of\tthe  proceedings.  The\tonly
\n     consideration at  that juncture  is to  ensure that  no
\n     prejudice is occasioned to the rate payers in case they
\n     ultimately\t  succeed   at\t the   conclusion   of\t the
\n     proceedings. This\tobject can  be attained by requiring
\n     the body  or authority  levying the  impost to  give an
\n     undertaking to  refund or\tadjust against\tfuture dues,
\n     the levy  of tax or rate or a part thereof, as the case
\n     may be,  in the  event of\tthe entire  levy or  a\tpart
\n     thereof being ultimately held\n<\/p>\n
(l) [1984l 1.2 S.C.C. 646 t
\n(2) C, A. No. 11420 of 1983
\n194<\/span>
\n     to be  invalid by\tthe court  without obliging the tax-
\n     payers to\tinstitute a civil suit in order to claim the
\n     amount already  recovered from them. On the other hand,
\n     the Court\tcannot be  unmindful of\t the need to protect
\n     the authority  levying the\t tax, for, at that stage the
\n     Court  has\t to  proceed  on  the  hypothesis  that\t the
\n     challenge may or may not succeed. The Court has to show
\n     awareness of the fact that in a case like the present a
\n     municipality cannot  function  or\tmeet  its  financial
\n     obligations if  its source\t of revenue is blocked by an
\n     interim  order   restraining  the\t municipality\tfrom
\n     recovering the taxes as per the impugned provision. And
\n     that the  municipality has\t to maintain essential civic
\n     services like  water supply, street lighting and public
\n     streets etc.,  apart from\tcunning public\tinstitutions
\n     like schools,  dispensaries,  libraries  etc.  What  is
\n     more, supplies  have to  be purchased and salaries have
\n     to paid.  The grant  of an\t interlocutory order of This
\n     nature would  paralyze the administration and dislocate
\n     the entire\t working of  the municipality. It seems that
\n     these serious  ramifications of  the matter  were\tlost
\n     sight of while making the impugned order”.
\n     In Titaghur  Paper Mills Co. Ltd. v. S\/ate of Orissa A.
\nP. Sen\tE. S.  Venkataramiah and  R. B. Misra, JJ.<\/a> held that
\nwhere the  statute itself  provided the\t petitioners with an
\nefficacious alternative\t remedy by  way of  an appeal to the
\nPrescribed Authority,  a second\t appeal to  the Tribunal and
\nthere after  to have  the case\tstated to the High Court, it
\nwas not\t for the  High Court  to exercise its extra ordinary
\njurisdiction under  Art. 226 of the Constitution ignoring as
\nit were, the complete statuary machinery. That it has become
\nnecessary, even\t now, to  as to\t repeat this  admonition  is
\nindeed a  matter of tragic concern to us. Article 226 is not
\nmeant to  short circuit\t of circumvent statutory procedures.
\nIt is  only were  statutory remedies are entirely ill-suited
\nto meet\t the demands  of extraordinary\tsituations,  as\t for
\ninstance where the very vires of thee statute is in question
\nor where  private or public wrongs are so inextricably mixed
\nup and\tthe prevention\tof public injury and the vindication
\nof public  justice require  it that  recourse may  be had to
\nArt. 226  of the  Constitution. But then the Court must have
\ngood and sufficient reason to by-pass the alternative remedy
\nprovided by  statute. Surely  matters involving\t the revenue
\nwhere statutory remedies are available are not such matters.
\nWe can also take judicial notice of the fact that the vast
\n195<\/span>
\nmajority of  the petitions under Art. 226 o the Constitution
\nare filed  . solely  for the  purpose of  obtaining  interim
\norders and there after prolong the proceedings by one device
\nor the\tother. The  practice certainly\tneeds to be strongly
\ncouraged.\n<\/p>\n
     In Union  of India\t v. Oswal Woollen Mills Ltd.,<\/a> we had
\noccasion to consider an interim order passed by the Calcutta
\nHigh Court  in regard  to a  matter no\tpart of the cause of
\naction relating\t to  which  appeared  to  arise\t within\t the
\njurisdiction of\t the Calcutta  High Court.  In that case the
\ninterim order  practically granted  the very  prayers in the
\nwrit petition. We were forced to observe,
\n\t “It  is obvious  that the  interim order  is  of  a
\n     drastic character\twith a great potential for mischief.
\n     The principal  prayer  in\tthe  writ  petition  is\t the
\n     challenge to  the order  made or  proposed to  be\tmade
\n     under Clause 8 of the Import Control order. The interim
\n     order in terms of prayers (j) and (k) has the effect of
\n     practically allowing  the writ petition at the stage of
\n     admission without\thearing the  opposite parties. While
\n     we do  not wish to say that a drastic interim order may
\n     never be  passed without  hearing the  opposite parties
\n     even if  the circumstances\t justify  it,  we  are\tvery
\n     firmly of\tthe opinion  that a  statutory order such as
\n     the one  made in  the present  case under Clause 8-B of
\n     the Import\t Control order ought not to have been stayed
\n     without at\t least hearing\tthose that  made the  order.
\n     Such  a  stay  may\t lead  to  devastating\tconsequences
\n     leaving  no  way  of  undoing  the\t mischief.  Where  a
\n     plentitude of  power is given under a statute, designed
\n     to meet  a dire  situation, it is no answer to say that
\n     the very nature of the power and the consequences which
\n     may ensue\tis itself a sufficient justification for the
\n     grant of a stay of that order, unless, of course, there
\n     are sufficient  circumstances to justify a strong Prima
\n     facie inference that the order was made in abuse of the
\n     power conferred  by the statute. A statutory order such
\n     as the  one under Clause 8-B purports to be made in the
\n     public interest  and unless  there\t are  even  stronger
\n     grounds of public interest an expert interim order will
\n     not be justified. The only appropriate order to make in
\n     such cases\t is to\tissue notice  to the  respondent and
\n     make it  returnable within\t a short period. This should
\n     particularly be  so where the offices of the principals
\n     respondents and relevant records
\n196<\/span>
\n     lie outside  the ordinary jurisdiction of the court. To
\n     grant interim  relief straightaway\t and leave it to the
\n     respondents to  move the  court to\t vacate the  interim
\n     order  may\t  jeopardise  the  public  interest.  It  is
\n     notorious how  if an  interim order  is once  made by a
\n     court, parties  employ every  device and tactic to ward
\n     off the  final  hearing  of  the  application.  It\t is,
\n     therefore, necessary  for the  courts to be circumspect
\n     in\t the   matter  of   granting  interim  relief,\tmore
\n     particularly so  where the\t interim relief\t is directed
\n     against orders or actions of public officials acting in
\n     discharge of  their public\t duty  and  in\texercise  of
\n     statutory powers.\tOn the facts and circumstance of the
\n     present case,  we are  satisfied that no interim relief
\n     should have been granted by the High Court in the terms
\n     in which it was done”,
\n     We\t repeat\t and  deprecate\t the  practice\tof  granting
\ninterim order  which practically  give the  principal relief
\nsought in  the petition\t for no\t better reason\tthan that  a
\nprima facie  case has been made out, without being concerned
\nabout the  balance of convenience, the public interest and a
\nhost  of   other  relevant   considerations.  Regarding\t the
\npractice of  some clever  litigants of\tresorting to  filing
\nwrit  petitions\t in  the  far-away  courts  having  doubtful
\njurisdiction, we had this to observe:\n<\/p>\n
\t“….. Having regard to the fact that the registered
\n     office of\tthe Company is at Ludhiana and the principal
\n     respondents against  whom the  primary relief is sought
\n     are at  New Delhi,\t one would  have expected  the\twrit
\n     petition to be filed either in the High Court of Punjab
\n     and Haryana  or p\tin the\tDelhi High  Court. The\twrit
\n     petitioners however,  have\t chosen\t the  Calcutta\tHigh
\n     Court  as\t the  forum   perhaps  because\tone  of\t the
\n     interlocutory reliefs  which is sought is in respect of
\n     a consignment  of beef  tallow which has arrived at the
\n     Calcutta Port.  An inevitable  result of  the filing of
\n     writ petitions  elsewhere than  at the  place where the
\n     concerned offices\tand the relevant records are located
\n     is to delay prompt return and contest. We do not desire
\n     to probe  further into  the question  whether the\twrit
\n     petition  was  filed  by  design  or  accident  in\t the
\n     Calcutta High  Court when\tthe office of the Company is
\n     in\t the   State  of   Punjab  and\t all  the  principal
\n     respondents are in Delhi. But we do feel disturbed that
\n     such writ petitions are of ten deliberately
\n197<\/span>
\n     filed in distant High Courts, as part of a manoeuvre in
\n     a A  legal battle, so as to render it difficult for the
\n     officials at  Delhi to move applications to vacate stay
\n     where it becomes necessary to file such applications”.
\n     In\t Union\tof  India  v.  Jain  Shudha  Banaspati\tLtd.<\/a>
\n(supra), Chandrachud,  CJ., A.\tP. Sen,\t R.  N.\t Misra,\t JJ.
\nallowed an  appeal  against  an\t interim  order\t making\t the
\nfollowing observations:\n<\/p>\n
\t  “After  hearing  learned  counsel  for  the  rival
\n     parties, we  are of  the opinion that the interim order
\n     passed by\tthe High  Court on  November 29, 1983 is not
\n     warranted since  it virtually grants to the respondents
\n     a substantial  part of  the relief\t claimed by  them in
\n     their writ petition. Accordingly, we set aside the said
\n     order”.<\/p><\/blockquote>\n
     We have  come across  cases  where\t the  collection  of
\npublic revenue has been seriously jeopardised and budgets of
\nGovernments and\t Local Authorities  affirmatively prejudiced
\nto the\tpoint  of  precariousness  consequent  upon  interim
\norders made  by courts.\t In fact  instances have come to our
\nknowledge where\t Governments have  been\t forced\t to  explore
\nfurther sources\t for raising  revenue,\tsources\t which\tthey
\nwould rather  well  leave  alone  in  the  public  interest,
\nbecause of  the stays granted by courts. We have come across
\ncases where  an entire\tService is left in a stay of flutter
\nand unrest  because of\tinterim\t orders\t passed\t by  courts,
\nleaving the  work they\tare supposed  to do  in a  state  of
\nsuspended animation.  We have  come across cases where buses
\nand lorries  are being run under orders of court though they
\nwere  either  denied  permits  or  their  permits  had\tbeen
\ncanceled or suspended by Transport Authorities. We have come
\nacross cases  where liquor shops are being run under interim
\norders of  court.  We  have  come  across  cases  where\t the
\ncollection of  monthly rentals payable by Excise Contractors
\nhas been  stayed with the result that at the and of the year
\nthe contractor\thas paid  nothing but  made his profits from
\nthe shop  and walked  out. We  have come  across cases where
\ndealers in  food grains\t and essential commodities have been
\nallowed to  take back  the stocks  seized from them as if to
\npermit them  to continue  to indulge  in the  very practices
\nwhich were  to be  prevented by\t the seizure.  We have\tcome
\nacross\tcases\twhere  land  reform  and  important  welfare
\nlegislations have  been stayed\tby courts. Incalculable harm
\nhas been done by such interim orders. All this is not to say
\nthat interim orders may never be
\n198<\/span>
\nmade against public authorities. There are, of course, cases
\nwhich demand  that interim  orders should  be  made  in\t the
\ninterests of  justice. Where gross violations of the law and
\ninjustices are\tperpetrated or\tare about to be perpetrated,
\nit is  the bounden  duty of  the court to intervene and give
\nappropriate interim relief. In cases where denial of interim
\nrelief\tmay  lead  to  public  mischief,  grave\t irreparable
\nprivate\t injury\t  or  shake   a\t citizen’s   faith  in\t the
\nimpartiality of\t public administration,\t a Court may well be
\njustified  in\tgranting  interim   relief  against   public
\nauthority.  But\t  since\t the   law  presumes   that   public
\nauthorities function  properly and  bonafide with due regard
\nto the\tpublic interest,  a court  must\t be  circumspect  in
\ngranting interim orders of far reaching dimensions or orders
\ncausing administrative,\t burdensome inconvenience  or orders
\npreventing collection of public revenue for no better reason
\nthan that  the parties\thave  come  to\tthe  Court  alleging
\nprejudice, inconvenience or harm and that a prima facie case
\nhas been  shown. There can be and there are no hard and fast
\nrules.\tBut  prudence,\tdiscretion  and\t circumspection\t are
\ncalled for.  There are\tseveral other  vital  considerations
\napart from the existence of a prima facia case. There is the
\nquestion of balance of convenience. There is the question of
\nirreparable injury.  There is  the question  of\t the  public
\ninterest   There   are\t many\tsuch   factors\t worthy\t  of
\nconsideration. We  often wonder\t why in\t the  case  indirect
\ntaxation where\tthe burden has already been passed on to the
\nconsumer, any  interim relief  should at all be given to the
\nmanufacturer, dealer and the like !
\n     There is  just one\t more thing  that we wish to say. In
\nSiliguri v. Amalendu Das, the Court<\/a> was put to the necessity
\nof pointing out the following:\n<\/p>\n
\t “We will be failing in our duty if we do not advert
\n     to feature\t which causes  us dismay  and distress. On a
\n     previous occasion,\t a Division  Bench  had\t vacated  an
\n     interim order  passed by  a  learned  single  Judge  on
\n     similar facts  in a  similar situation.  Even so when a
\n     similar matter  giving rise  to the present appeal came
\n     up again,\tthe same  learned judge whose order had been
\n     reversed earlier,\tgranted a non-speaking interlocutory
\n     order of  the aforesaid  nature. This order was in turn
\n     confirmed by  a Division Bench without a speaking order
\n     articulating reasons  for\tgranting  a  stay  when\t the
\n     earlier Bench had vacated the stay. We
\n199<\/span>
\n     mean no disrespect to the High Court in emphasizing the
\n     necessity for  self-imposed discipline  in such matters
\n     in\t  obeisance    to   such    weighty    institutional
\n     considerations like  the need  to maintain\t decorum and
\n     comity. So also we mean no disrespect to the High Court
\n     in stressing  the need  for self-discipline on the part
\n     of the  High Court\t in passing  interim orders  without
\n     entering into  the question  of amplitude\tand width of
\n     the powers\t of the\t High Court to grant interim relief.
\n     The main  purpose of  passing an  interim order  is  to
\n     evolve a  workable formula or a workable arrangement to
\n     the extent\t called for  by the demands of the situation
\n     keeping  in   mind\t the   presumption   regarding\t the
\n     constitutionality\t of    the   legislation   and\t the
\n     vulnerability of  the challenge,  only in order that no
\n     irreparable  injury   is  occasioned.   The  Court\t has
\n     therefore\tto   strike   a\t  delicate   balance   after
\n     considering the pros and cons of the matter lest larger
\n     public interest  is not  jeopardized and  institutional
\n     embarrassment is eschewed”.\n<\/p>\n
     We desire to add and as was said in Cassel and Co. Ltd.
\nv. Broome(l)  we hope  it will\tnever be necessary for us to
\nsay so\tagain that  ‘in the  hierarchical system  of Courts’
\nwhich exists in our country, ‘it is necessary for each lower
\ntier’, including  the High  Court, ‘to\taccept\tloyally\t the
\ndecisions of  the higher  tiers’. “It  is  inevitable  in  a
\nhierarchical system of Courts that there are decisions 11 of
\nthe Supreme  appellate tribunal\t which do  not\tattract\t the
\nunanimous    approval\t  of\tall\tmembers\t   of\t the
\njudiciary……………\n<\/p>\n
But the\t judicial system only works if someone is allowed to
\nhave the  last word  and that  last word,  once\t spoken,  is
\nloyally accepted”(2).  The better  wisdom of the Court below
\nmust yield  to the higher wisdom of the Court above. That is
\nthe strength  of the hierarchical judicial system. In Cassel
\nv. Broome,  commenting on the Court of Appeal’s comment that
\nRookes v.  Barnard(3) was rendered per incuriam Lord Diplock
\nobserved,-\n<\/p>\n
\t “The  Court of\t Appeal\t found\tthemselves  able  to
\n     disregard the  decision of\t this  House  in  Rookes  v.
\n     Barnard by\t applying to  it the label per incuriam That
\n     label is  relevant only  to the  right of\tan appellate
\n     court to decline to
\n(1)  [1972] AC 1027
\n(2)  (See observations\tof Lord\t Hailsham and Lord Dipock in
\n     Broome v. Cassell).\n<\/p>\n
(3)  [1984] A.C. 1129.\n<\/p>\n
200<\/span><\/p>\n
     follow one\t of its\t own previous  decisions, not to its
\n     right to  disregard a  decision of\t a higher  appellate
\n     court or  to the  right of a judge of the High Court to
\n     disregard a decision of the Court of Appeal.”
\n     It is  needless to\t add that in India under Act. 141 of
\nthe Constitution the law declared by the Supreme Court shall
\nbe binding  on all  courts within the territory of India and
\nunder Art.  144 all  authorities, civil\t and judicial in the
\nterritory of India shall act in aid of the Supreme Court.\n<\/p>\n
     Now coming\t to the\t facts\tof  the\t present  case,\t the
\nrespondent, Dunlop India Limited is a manufacturer of types,
\ntubes and  various other  rubber products. By a notification
\ndated April  6, 1984  issued by\t the  Government  of  India,
\nMinistry of  Finance (Department  of Revenue) in exercise of
\nthe powers  conferred by  Rule 8  (1) of  the Central Excise
\nRules, 1944,  types, falling  under item No. 16 of the First
\nSchedule to  the Central  Excise and  Salt Act,\t 1944,\twere
\nexempt from  a certain\tpercentage of  excise  duty  to\t the
\nextent that  the manufacturers had not availed themselves of
\nthe  exemption\t granted   under   certain   other   earlier
\nnotifications The  Department  was  of\tthe  view  that\t the
\nCompany was  not entitled to the exemption as it had cleared
\nthe goods earlier without paying central excise duty, but on
\nfurnishing Bank\t Guarantees under  various interim orders of
\ncourts. The  Company claimed the benefit of the exemption to
\nthe tune of Rs. 6.05 crores and filed a writ petition in the
\nCalcutta High  Court and sought an interim order restraining
\nthe central  excise authorities from the levy and collection
\nof excise  duty. The learned single judge took the view that
\na prima\t facie case  had been  made out\t in  favour  of\t the
\nCompany and  by an  interim order allowed the benefit of the
\nexemption to  the tune\tof Rs. two crores ninety three lakhs
\nand eighty  five thousand  for which  amount the company was
\ndirected to  furnish a\tBank Guarantee,\t that is to say, the
\ngoods were  directed to\t be released  on the  Bank Guarantee
\nbeing furnished.  An appeal  was preferred  by the Assistant
\nCollector of  Central Excise  under clause 10 of the Letters
\nPatent and  a Division\tBench of  the  Calcutta\t High  Court
\nconfirmed the  order of the learned single Judge, but made a
\nslight modification  in that the Collector of Central Excise
\nwas given  the liberty\tto encash 30% of the Bank Guarantee.
\nThe Assistant Collector of Central Excise has preferred this
\nappeal by special leaue. By our interim order dated November
\n15, 1984,  we vacated  the orders  granted  by\tthe  learned
\nsingle Judge
\n201<\/span>
\nas well as by the Division Bench. We gave two weeks’ time to
\nthe A  respondent Company to file a counter No. counter has,
\nhowever been  filed. Shri  F.S.\t Nariman,  learned  counsel,
\nhowever appeared  for the  respondent. We  do not  have\t the
\nslightest doubt\t that the orders of the learned single judge
\nas well\t as Division  Bench  are  wholly  unsustainable\t and
\nshould never  been made.  Even assuming that the company had
\nestablished a  prima facie  case,  about  which\t we  do\t not
\nexpress any  opinion, we do not think that it was sufficient
\njustification for granting the interim orders as was done by
\nHigh  Court.  There  was  no  question\tof  any\t balance  of
\nconvenience being  in favour  of the respondent-Company. The
\nbalance of  convenience\t was  certainly\t in  favour  of\t the
\nGovernment of  India. Governments  are not  run on mere Bank
\nGuarantees. We\tnotice that very often some courts act as if
\nfurnishing a  Bank Guarantee would meet the ends of justice.
\nNo governmental\t business or  for that matter no business of
\nany kind  can be run on mere Bank Guarantees. Liquid cash is
\nnecessary for  the running  of a  Government as\t indeed\t any
\nother enterprise.  We consider\tthat where matters of public
\nrevenue are  concerned, it is of utmost importance to reales
\nthat interim orders ought not to be granted merely because a
\nprima facie  case has  been shown.  More  is  required.\t The
\nbalance of  convenience must  be clearly  in favour  of\t the
\nmaking of  an interim  order and  there should\tnot  be\t the
\nslightest indication  of a  likelihood of  prejudice to\t the
\npublic interest.  We are  very sorry  to remark\t that  these
\nconsiderations have not been borne in mind by the High Court
\nand interim order of this magnitude had been granted for the
\nmere asking. The appeal is allowed with costs. E
\nN.V.K.\t\t\t\t\t     Appeal allowed.\n<\/p>\n
202<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Assistant Collector Of Central … vs Dunlop India Ltd. And Ors on 30 November, 1984 Equivalent citations: 1985 AIR 330, 1985 SCR (2) 190 Author: O C Reddy Bench: Reddy, O. Chinnappa (J) PETITIONER: ASSISTANT COLLECTOR OF CENTRAL EXCISE CHANDAN NAGAR, WEST BE Vs. RESPONDENT: DUNLOP INDIA LTD. AND ORS . […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-77757","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAssistant Collector Of Central ... vs Dunlop India Ltd. 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