Page 184 - GSTL_2nd April 2020_Vol 35_Part 1

86 GST LAW TIMES [ Vol. 35
tions are same, those were heard analogously and are being decided by this
common judgment and order.
3. By way of present applications, the applicants - original respondents
have prayed for review of the judgment and order dated 6-9-2019 passed by this
Court on the ground that due to inadvertence, they could not point out the
judgment of this Court rendered in the case of Willowood Chemicals Pvt. Ltd. v.
Union of India in the Special Civil Application No. 4252 of 2018 reported in 2018
(19) G.S.T.L. 228 (Guj.) and in the case of Jay Chemical Industries Ltd. v. Union of
India in the Special Civil Application No. 10828 of 2018 reported in 2018 (19)
G.S.T.L. 440 (Guj.).
3.1 It is submitted by Mr. Chintan Dave, the Learned Assistant Gov-
ernment Pleader, appearing on behalf of the applicants that in both the above
referred cases, this Court has noted the statutory provisions, the scale of opera-
tions and the possible repercussions; if such time limit contained in Rule 117 of
the CSGT Rules is annihilated and a registered person is allowed to make decla-
ration of the left over residuary duty of credit at the time of migration to the new
tax structure, the time limit provisions cannot be seen as merely technical in na-
ture. It is further held by this Court that this plenary prescription of time limit
within which necessary declaration must be made, is neither without authority
nor unreasonable.
4. Per contra, Mr. Vinay Shraff, the Learned Counsel appearing on be-
half of Mr. Vishal J. Dave, the Learned Counsel for the respondents herein, sub-
mitted that it is a settled principal of law that a judgment or order passed per in-
curiam does not create a binding precedent.
4.1 In this regard, Mr. Shraff, the Learned Counsel for the respondents
herein, has placed reliance on the judgment of the Apex Court in the case of Babu
Parasu Kaikadi (Dead) by Lrs. v. Babu (Dead) through Lrs. reported in (2004) 1 SCC
681 and contended that the Apex Court has categorically stated that if the co-
ordinate Bench has not noticed the earlier binding precedent of the co-ordinate
Bench and having not considered the mandatory provisions of the Act, the deci-
sion should be rendered per incuriam and it, therefore, does not constitute a bind-
ing precedent. The same view is also taken by the Kolkata High Court in the case
of Hindustan Cables Ltd. and Ors. v. Tapan Kumar Sarkar and Ors. reported in (2016)
4 CALLT 220 (H.C.) and several other High Courts namely, (1) the Bombay High
Court in the case of Kuresh Taherbhai Rajkotwala v. Union of India reported in 2007
(209) E.L.T. 347 (Bom.), (2) the Kerala High Court in the case of Collector of Cus-
toms, Cochin v. State of Kerala reported in 1993 (66) E.L.T. 351 (Ker.) and (3) the
Orissa High Court in the case of Pravasini Behera v. Sankar Das and Seven Ors. re-
ported in 105 (2008) CLT 851.
4.2 Relying on the decisions of the above referred several High Courts,
Mr. Shraff, the Learned Counsel for the respondents herein, contended that in
the cases of Willowood Chemicals Pvt. Ltd. (supra) and Jay Chemical Industries Ltd.
(supra), the co-ordinate Bench has not considered the binding precedent in the
case of Filco Trade Centre Pvt. Ltd. v. Union of India reported in 2018 (17) G.S.T.L. 3
(Guj.), wherein the reliance was placed on the judgement of the Apex Court in
the case of Shayra Bano v. Union of India reported in 2017 (9) SCC 1 and other pro-
nouncements of the Apex Court. In the case of Filco Trade Centre Pvt. Ltd. (supra)
the co-ordinate Bench has concluded as under :
“To sum up we are of the opinion that the benefit of credit of eligible duties
on the purchases made by the first stage dealer as per the then existing
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