TaxTMI 
TaxTMI 
2017 (5) TMI 376
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....espondent No.1 showing the figure of sale of the said products in the State of Madhya Pradesh. According to the petitioner, the aforesaid products were assessable under Entry 16, part IV of Schedule II of M.P. General Sales Tax Act, 1958 (for short 'The Act') under category "Drugs and Medicines" and therefore, tax was payable at the rate of 3% of the total sales effected by the petitioner. The respondent No.1, however, was of the opinion that the aforesaid products fell under category of "Toilet articles...." covered by Entry 2 of part III of Schedule II of the said Act and, therefore, tax at the rate of 12% in respect of Vicco Vajradanti (paste and powder) and at the rate of 16% in respect of Vicco Turmeric cream as applicable to cosmetics under Entry 21 part II of Schedule II of the said Act. The petitioners were, therefore, called upon to pay Sales Tax at the rate of 12% and 16% in respect of the Sales of Vicco Vajradanti (Paste and Powder) and Vicco turmeric Cream respectively. The petitioner paid the tax in advance on the basis of the quarterly returns accordingly as demanded by the respondent No.1 at the rate of 12% and 16% under protest. 04. The argument of the Lear....
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....nown to Ayurveda. No where has the trial Court given an opinion as to what is understood by the phrase "exclusive Ayurvedic medicine". One can visualise several considerations which may become material for being considered as exclusively Ayurvedic medicines. The argument that in taxation matters the onus is one the Revenue will be inapplicable to the present case. If an item can fall within two Entries, it may be for the person affected by the levy to decide as to under which head it should be classified and there, perhaps, it may be correctly observed that the Court or Tribunal deciding the matter must lean in favour of the subject and against the Revenue. That principle has been properly applied by us in order to determine that the two products V. Vajradanti and V. Turmeric, would be covered by Entry 14E and not Entries 14F and 14FF respectively. ....................." 07. The said order of the Division Bench of Bombay High Court was challenged before the Supreme Court in Special Leave to Appeal No.1918 of 1989. The petition was dismissed on 6.9.1990 for the reason that the Union of India has not been able to make out reasons for condonation of delay. But, in an appeal again....
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....by the decision of the coordinate Bench relying upon an order passed by the Supreme Court in the cases mentioned above. 10. We have heard the learned counsel for the parties and find that the order of the learned Single Bench following the order in the Dawar Brother's case, cannot be sustained. In Dawar Brother's case, it has been noticed that the argument of the revenue was that the taxing statute does not define drugs and medicines, therefore, the provisions under consideration required to be given meaning in trade. The argument of the revenue, as recorded in the order, reads as under:- "4. The case of the Revenue is that since the taxing statute did not define "drugs and medicines", the disputed products required to be given their trade meaning and treated as such and not under the category of "drugs and medicines" as these contained no substance or preparation used in prevention or treatment of a disease and could not be credited with any curative power. It is also submitted that even the assessee was selling these products as cosmetic items and not medicines. Lastly it is argued that mere obtaining of licence by the assessee under the Drugs and Cosmetics Act, could not clot....
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....s been interpreted by the Supreme Court time and again. The Constitution Bench in a judgment reported as A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 held as under: 42. It appears that when this Court gave the aforesaid directions on 16-2-1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions or law and the decision in Anwar Ali Sarkar case [AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] . See Hulsbury's Laws of England, 4th Edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER 293, 300] Also see the observations of Lord Goddard in Moore v. Hewitt [(1947) 2 All ER 270, 272-A] and Penny v. Nicholas [(1950) 2 All ER 89, 92-A] . "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling [....
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....ns when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law. Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "A decision passes 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." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. [(1941) 1 KB 675, 677 : (1941) 2 All ER 11] the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. [(1989) 1 SCC 101]............" 16. In a judgment reported as Govt. of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262 the Court held that the rule of per incuriam can....
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..... Mucklow Ltd. v. IRC, 1954 Ch 615 : (1954) 2 All ER 508 (CA), Morelle Ltd. v. Wakeling, (1955) 2 QB 379 : (1955) 1 All ER 708 (CA), see also Bonsor v. Musicians' Union, 1954 Ch 479 : (1954) 1 All ER 822 (CA), where the per incuriam contention was rejected and, on appeal to the House of Lords although the House overruled the case which bound the Court of Appeal, the House agreed that that court had been bound by it; see Bonsor v. Musicians' Union, 1956 AC 104 : (1955) 3 All ER 518 (HL).] . Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake." [Williams v. Glasbrook Bros. Ltd., (1947) 2 All ER 884 (CA)] Lord Godard, C.J. in Huddersfield Police Authorities case [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.] observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it wo....