Page 131 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] GLOBAL COAL & MINING PVT. LTD. v. COMMISSIONER OF SERVICE TAX, DELHI 89
of duty exemption notification. The issue was whether this product required for
heat transfer application in the plant could be treated as ‘material for manufac-
ture of Polyester Staple Fiber Yarn and thus entitled for duty exemption. The
Tribunal decided the issue in the favour of assessee. The Civil Appeal filed by the
Department in the Supreme Court was dismissed. Opinion was sought by the
Department for filing a review petition. In response to it, it was stated that since
the Supreme Court had not given any reason for dismissing the Civil Appeal,
there was no ground for filing a review. It was also stated that mere dismissal of
a Civil Appeal/Special Leave Petition by the Supreme Court does not mean that
Supreme Court had approved the impugned order or that the order of the Tribu-
nal merged with the order of the Supreme Court and in similar other cases, this
matter could still be agitated.
32. This Circular does not give liberty to an officer of the Department
exercising quasi judicial powers to ignore the binding decisions of the Tribunal
or the High Court if the Civil Appeal filed by the Department to assail the deci-
sion of the Tribunal is dismissed by the Supreme Court. The Principal Commis-
sioner was not justified in taking shelter of this Circular to ignore the binding
decisions of the Tribunal, more particularly when the writ petition filed by the
Department had been dismissed by the High Court and the Civil Appeal had
also been dismissed by the Supreme Court.
33. The statement in the aforesaid Circular that dismissal of a Civil Ap-
peal by the Supreme Court does not mean that the order of Tribunal merged in
the order of the Supreme Court is also not correct in view of the judgment of Su-
preme Court in the Kunhayammed & Ors. v. State of Kerala & Anr. - 1991 (55) E.L.T.
433 (S.C.) = 2001 (129) E.L.T. 11 (S.C.). The Supreme Court held that once a Civil
Appeal is dismissed by the Supreme Court, the doctrine of merger will apply.
The observations of the Supreme Court are :
“27. From a cumulative reading of the various judgments, we sum up the
legal position as under :
(a) The conclusions rendered by the three Judge Bench of this Court in
Kunhayammed and summed up in paragraph 44 are affirmed and reiterat-
ed.
(b) We reiterate the conclusions relevant for these cases as under :
xxxxxxx xxxxxxx xxxxxx
(iv) An order refusing special leave to appeal may be a non-
speaking order or a speaking one. In either case it does not attract
the doctrine of merger. An order refusing special leave to appeal
does not stand substituted in place of the order under challenge.
All that it means is that the Court was not inclined to exercise its
discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e.,
gives reasons for refusing the grant of leave, then the order has
two implications. Firstly, the statement of law contained in the or-
der is a declaration of law by the Supreme Court within the mean-
ing of Article 141 of the Constitution. Secondly, other than the dec-
laration of law, whatever is stated in the order are the findings
recorded by the Supreme Court which would bind the parties
thereto and also the Court, Tribunal or Authority in any proceed-
ings subsequent thereto by way of judicial discipline, the Supreme
Court being the Apex Court of the country. But, this does not
amount to saying that the order of the Court, Tribunal or Authori-
GST LAW TIMES  7th May 2020  131