Rule 5 refund consistency upheld after prior High Court view was left undisturbed despite dismissal of special leave petition.

Refund under Rule 5 was upheld on the basis of an earlier identical Karnataka HC ruling, and the Tribunal's reliance on that view was treated as correct. The later challenge failed because the Supreme Court's dismissal of the special leave petition, including the concession recorded there, did not amount to a separate acceptance of the Revenue's contrary position. Applying consistency and the binding effect of the approved view in an identical situation, the Bombay HC declined to take a different view and dismissed the appeal in limine, leaving the Revenue without relief.

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Issues: Whether the appeal could be entertained when the Tribunal had followed an earlier decision upholding refund under Rule 5, and whether the dismissal of the special leave petition against that earlier decision required a different result.

Analysis: The appeal turned on the effect of the earlier Karnataka High Court decision, which had answered the refund issue against the Revenue and in favour of the assessee. The record of the special leave petition showed that the Supreme Court dismissed it by a reasoned order, but the concession recorded there did not amount to acceptance of the correctness of the High Court decision by the Revenue. The High Court held that the earlier decision stood affirmed on its own merits and that, following the principle of consistency and the binding effect of the approved view in an identical situation, no contrary view could be taken.

Conclusion: The appeal was not entertained and was dismissed in limine, with the Revenue receiving no relief.

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