Page 35 - GSTL_6th August 2020_Vol 39_Part 1

2020 ] PRECEDENTS — HOW AND WHEN DISTINGUISHABLE J17
5. Sub silentio is a legal Latin term meaning “under silence” or “in si-
lence”. It is often used as a reference to something that is implied
but not expressly stated. Commonly, the term sub silentio is used
when a Court overrules an issue in a case without citing the reasons
in doing so.
Salmond on Jurisprudence of sub silentio, Twelfth Edition : P.J. Fitz-
gerald on this proposition : Extract of the same is reproduced for
reference.
“A decision passes sub silentio, in the technical sense is that has come
to be attached to that phrase, when the particular point of law in-
volved in the decision is not perceived by the Court or present to its
mind. The Court may consciously decide in favour of one party be-
cause of point A, which it considers and pronounces upon. It may be
shown, however, that logically the Court should not have decided in
favour of the particular party unless it also decided point B in his fa-
vour; but point B was not argued or not considered by the Court. In
such circumstances, although point B was logically involved in the
facts and although the case had a specific outcome, the decision is not
an authority on point B. Point B is said to pass sub silentio”.
In some cases the Court may make no pronouncement on a point
with regard to which there was no argument, and yet the decision
of the case as a whole assumes a decision with regard to the particu-
lar point, which was not argued. Such decisions are said to be
passed sub silentio, limited to such point.
In case a portion of decision is sub silentio, such portion of decision
cannot be set as a precedent decision to be followed.
6. Obiter dicta : Is an, incidental statement. It refers to passage in a ju-
dicial opinion which is not necessary for the decision of the case be-
fore the Court. Such statements lack the force of precedent but may
nevertheless be significant.
In case of Portal India Wireless Solutions P. Ltd., 2012 (27) S.T.R. 134
(Kar.), the context of decision was on an issue whether unregistered
assessee can avail Cenvat credit/refund. In the course of such deci-
sion, a passing remark on non-application of period of limitation for
refund claim was made, such statement at best can be said as pass-
ing reference and it can be termed as obiter dicta. The weightage on
decision on an issue being obiter dicta, may not weigh high vis-à-vis
compared to decision with ratio decidendi.
7. Res judicata : Is the principle that a cause of action may not be re-
litigated once it has been judged on merits.
In case of Instalment Supply (Pvt.) Ltd. v. Union of India, AIR 1962 SC
53, it was held that principles of res judicata, would not apply to tax
matters. However the exception to this doctrine is that if the fact of
case and legal provision remain same, then the principles of res judi-
cata would apply.
8. Res integra : Means entire thing; or an untouched matter; or a point
without a precedent; a case of novel impression. The term res integra
is applied to those points of law which have not been decided,
which are untouched by dictum or decision. In case of decision on a
GST LAW TIMES  6th August 2020  35