Page 34 - GSTL_6th August 2020_Vol 39_Part 1

J16 GST LAW TIMES [ Vol. 39
Larger Bench. Larger Bench of Supreme Court in case of Ramala Sa-
hakari Chini Mills, departed from the decision of Maruti Suzuki - 2009
(240) E.L.T. 641 (S.C.) in the case of Ramala Sahakari Chini Mills Ltd.
v. CCE - 2016 (334) E.L.T. 3 (S.C.).
3. Doctrine of Merger : Is a process wherein decision of Lower Court
gets merged into with the decision of Higher Court. In case an ap-
peal is filed against the order of Commissioner (Appeals) before
Tribunal and if the Tribunal sets aside the Commissioner (Appeals)
order, then the decision of Tribunal will prevail over the decision of
Commissioner (Appeals). In case any appeal has to be filed, then the
appeal has to be filed against the order of Tribunal. From the above
said example, it is clear that when Tribunal sets aside the order of
Commissioner (Appeals), order of Tribunal will step into the shoes
of order of Commissioner (Appeals). This principle is called doc-
trine of merger. This principle is well explained, in case of Kunha-
yammed v. State of Kerala - 2001 (129) E.L.T. 11 (S.C.).
Exception to the principle of Doctrine of Merger : If an appeal is
dismissed on the ground of limitation, e.g., : if an appeal was filed
before Commissioner (Appeals) beyond the statutory time period
and beyond the condonable period, and if such appeal was rejected
without being admitted, then the doctrine of merger will not apply
to such decision.
If Special Leave Petition is dismissed by Apex Court giving some
reason, even if the reasoning of decision is given in one sentence,
there will be merger of judgment of High Court into the order of
Supreme Court.
When a special leave petition is dismissed without giving any rea-
sons, there is no merger of the judgment of the High Court with the
order of Supreme Court. The judgment of the High Court can be re-
viewed since it continues to exist.
4. Per Incuriam order : Means orders passed “through lack of care”. It
refers to a judgment of a Court which were passed without refer-
ence to a statutory provision or without referring to precedent deci-
sions having the same ratio.
The significance of a judgment being per incuriam is that, it need not
be followed as precedent by a Lower Court. Ordinarily, in the
common law, the rationale of a judgment must be followed by Low-
er Courts while hearing similar cases. A Lower Court is free to de-
part from an earlier judgment of a Superior Court where the earlier
judgment of Superior Court was decided per incuriam. This doctrine
is an exception to Article 141 of Constitution of India which embod-
ies the doctrine of precedents as a matter of law.
In tax cases for subsequent period involving the same issue as in for
earlier period, the Court can differ from the view expressed in the
preceding period, if the case is distinguishable, due to change in
facts or there was change in legal position of law or if the previous
relied upon decision was per incuriam order. However if the legal
provisions and facts remained same, then the precedent decision
would continue to apply for the subsequent period.
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