2017 (3) TMI 1349

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....gh Court has held in para 9 and 11 as follows:- "9. After hearing learned Counsel for the parties, we are of the considered view that this appeal is devoid of any merit. The assessee-respondent admittedly is not a party to the fraud. There are categorical finding that it had purchased DEPB from the open market in the bona fide belief of its being genuine. The assessee-respondent had paid full price and accordingly had availed the benefit. 11. The matter is not res integra. The revenue-appellant has also filed other appeals challenging similar others passed by the Tribunal, bearing (CUSAP Nos. 13, 14, 15 and 17 of 2006. Vide judgment rendered in the case of Commissioner, Customs v. M/s. Leader Valves Ltd. (CUSAP No. 15 of 2006, dated 15-3-2007), we have already dismissed the afore-mentioned appeals." The Hon'ble Supreme Court has observed as follows while dismissing the appeal against the said decision of the Hon'ble Punjab & Haryana High Court:- "We find that identical dispute had arisen relating to transfer of licences under the Duty Entitlement Pass Book (DEPB) scheme and this Court dismissed the appeal of the Commissioner of Customs, Amritsar. The said judgment is reporte....

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....s. 13, 14, 15 and 17 of 2006. Vide judgment rendered in the case of Commissioner, Customs v. M/s. Leader Valves Ltd. (CUSAP No. 15 of 2006, dated 15-3-2007), we have already dismissed the afore-mentioned appeals." The said decision has been upheld by the apex court observing as under:- "We find that identical dispute had arisen relating to transfer of licences under the Duty Entitlement Pass Book (DEPB) scheme and this Court dismissed the appeal of the Commissioner of Customs, Amritsar. The said judgment is reported in Commissioner of Customs, Amritsar v. Ajay Kumar & Co. [2009 (238) E.L.T. 387 (S.C.)]. This appeal is, accordingly, dismissed." 5. In these circumstances, it is apparent that the decision dated 17.10.2016 is at variance with the decision of the Hon'ble Supreme Court in the case of Vallabh Design Products. 6. The Larger Bench of the Tribunal in the case of Hindustan Lever Ltd. (supra) has observed as under:- "6. When a decision rendered by the Apex Court is not considered, it is obvious that non-consideration of such binding precedent would constitute an error apparent on the face of the record, by the applicability of the doctrine of per incuriam. In cases wh....

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....ext of review, rectification on the basis of a subsequent decision of the Supreme Court, may bring about a total change in the nature of the order and virtually be a review. 7. However, the High Court of Gujarat in RPG Sciences Ltd. (supra) has following the ratio of the earlier decision of the court in Suhrid Geigy v. Commissioner of Surtax reported in 1999 (237) ITR 834 (Guj.) and referring to the decision in Assistant Commissioner of Income Tax v. Saurashtra Kutch Stock Exchange Ltd. reported in (2003 ) ITR 146, which reiterated the ratio of Suhrid Geigy (supra), has held that, the Tribunal could not have overlooked the settled legal position and was bound to carry out the rectification considering the ratio of the decision of the High Court as well as the Apex Court. It will be evident from paragraphs 5 to 7 of the said judgment that the ratio of the decision of the Larger Bench of the Tribunal in Gujarat State Fertilizers and Chemicals (supra) was directly and substantially under consideration, and the High Court was concerned with the question whether a subsequent binding decision would be a ground for reopening a concluded proceeding and for making a fresh order. It is evi....

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.... High Court had been pointed out and the petitioner invited attention to the decision of the Apex Court at a subsequent stage only because the decision was published later in point of time. The Tribunal could not have overlooked the settled legal position and was bound to carry out the rectification considering the ratio of the decision of the jurisdictional High Court as well as the Apex Court." 8. The High Court of Madras in V. Guard Industries Ltd. while considering a similar question in a case where rectification application was made after the judgment of the Supreme Court in Shanuga Traders etc. v. State of Tamil Nadu and Others reported in 114 STC 1, and dealing with the contention that it was not open to the assessee to seek such rectification by placing reliance on a judgment of the Supreme Court rendered subsequent to the assessment, held in paragraph 13 of the judgment that, notwithstanding what may have been done by any authority below the Supreme Court, when the Supreme Court pronounces on the true position of law any decision rendered by any other authority contrary to that, is required to be regarded as an error which is apparent on the record and rectification of s....