Page 188 - ELT_1_1st April 2020_Vol 372_Part

74 EXCISE LAW TIMES [ Vol. 372

ated by the Court as regards payment of duty on transfer of goods from SEZ to
DTA, the same will apply regardless of the period so long as there is no change
in the provision. It was submitted that the principle holds the field for the any
period.
8.3 In support of such submission, the Learned Counsel placed reliance
upon the decision of the Supreme Court in the case of Bharat Sanchar Nigam Ltd.
and Another v. Union of India and Others, (2006) 3 SCC 1 = 2006 (2) S.T.R. 161 (S.C.),
wherein the Court held thus :
“20. The decisions cited have uniformly held that res judicata does not ap-
ply in matters pertaining to tax for different assessment years because res
judicata applies to debar Courts from entertaining issues on the same cause
of action whereas the cause of action for each assessment year is distinct.
The Courts will generally adopt an earlier pronouncement of the law or a
conclusion of fact unless there is a new ground urged or a material change
in the factual position. The reason why Courts have held parties to the
opinion expressed in a decision in one assessment year to the same opinion
in a subsequent year is not because of any principle of res judicata but be-
cause of the theory of precedent or the precedential value of the earlier pro-
nouncement. Where facts and law in a subsequent assessment year are the
same, no authority whether quasi judicial or judicial can generally be per-
mitted to take a different view. This mandate is subject only to the usual
gateways of distinguishing the earlier decision or where the earlier decision
is per incuriam. However, these are fetters only on a coordinate bench
which, failing the possibility of availing of either of these gateways, may yet
differ with the view expressed and refer the matter to a bench of superior
strength or in some cases to a bench of superior jurisdiction.”
8.4 Reliance was also placed upon the decision of the Supreme Court in
the case of Union of India and Another v. Ranchi Municipal Corporation, Ranchi and
Others, (1996) 7 SCC 542, for the proposition that the summary dismissal does not
constitute res judicata for deciding the controversy. Moreover, this being a recur-
ring liability which is ultra vires the power, earlier summary dismissal of the case
does not operate as a res judicata.
8.5 In connection with the case put forth by the fifth respondent in the
affidavit-in-reply dated 9th December, 2016, wherein it has been stated that in
view of the instruction contained in clause 4 of Instruction No. 6, dated 3rd Au-
gust, 2006 issued by the Government of India, Ministry of Commerce and Indus-
try (Annexure R-1), any infrastructure created in excess thereof shall not be eligi-
ble for any duty and tax concession to the developer or co-developer as provided
in sections 26 and 27 of the Special Economic Zones Act, 2005, it was submitted
that the same does not apply to the petitioners and that the same applies to resi-
dential complexes, hotels, hospitals, schools, etc. It was submitted that insofar as
the provisions of Section 49 of the SEZ Act are concerned, to their knowledge,
there is no notification, nor has such notification brought on record. It was sub-
mitted that the principle laid down by this Court in the earlier decision will ap-
ply to all notifications and in a taxation matter, what has to be seen is the liabil-
ity.
9. From the facts and contentions noted hereinabove, it is an admitted
position that the petitioners had earlier filed a writ petition being Special Civil
Application No. 3142 of 2010, seeking the following reliefs :
“13. The Petitioners, therefore, pray that :-
EXCISE LAW TIMES  1st April 2020  236