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1 JUDICIAL DISCIPLINE on Fri 15 Jul 2011 - 17:30

Preetpal Singh

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It is the duty of Tribunal while hearing appeal both on facts and law to take note of all possible issues arising out of controversy and in particular legal issues and then decide them keeping in view the relevant provisions of law and decided cases on the issue involved. In the first instance, effort must be to find out whether issue involved is decided by any decision of Supreme Court in any case. If so then by virtue of Article 141 of Constitution of India, the issue must be decided strictly in accordance. If, there is no decision of Supreme Court on the issue, then the effort must be to decide the issue either on first principle applicable to case or by any decision of High Court of our country if holding the field. Any departure from these principles renders the decision of Tribunal bad in law.

Commissioner cannot pass an order inconsistent with judgment of Apex Court dealing with same question for the reason that it had subsequently admitted a civil appeal filed by the Department in a different case, reportedly on same issue. [CPC (P) Ltd. v. CCE, Coimbatore 2006 – (CESTAT, CHENNAI)]

In Sant Lal Gupta v Modern Cooperative Group Housing Society Ltd 2010 - (SUPREME COURT OF INDIA), it was held that decision of coordinate bench must be followed and that rule of precedent is binding to secure uniformity and certainty in law.

In MR Narkhede Memorial Trust v CCE, Pune 2010 – (CESTAT, MUMBAI), where the issue was between Tribunal’s order vis-à-vis departmental clarification, it was held that Tribunal’s decision shall have an overriding effect in case of such conflict.

While interpreting a taxing statute, legal section should be kept in mind. It was held that having regard to the contextual interpretation and in view of the fact that the court is dealing with a taxation statute, the legal fiction must be construed having regard to the object it seeks to achieve. [Ishikawajima-Harima Heavy Industries Ltd. v. Director of Income Tax, Mumbai 2007 – (SUPREME COURT)].

In Padumjee Pulp & Paper Mills Ltd v CCE, Pune I 2009 - CESTAT, MUMBAI), where Tribunal’s larger bench decision was not followed by CCE (Appeals) referring it as its opinion and passed a contrary order, it was held that the judicial discipline and propriety required him to follow larger bench decision and that the order was passed mindlessly which calls for deprecation. It stated that the lower authorities in the Department have got to follow binding judicial pronouncement scrupulously for the sake of administering justice.

In Choithram Hospital & Research Centre v. Union of India 2007 – (HIGH COURT OF MADHYA PRADESH AT INDORE), it was held that when law laid down by apex court on all relevant issues is holding the field and same is ignored by tribunal as last court of appeal on fact and law, than such an order passed by appellate tribunal cannot be called judicious one.



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