ISAGRO (ASIA) AGROCHEMICALS PVT LTD V. UNION OF INDIA

SCA/5841/2019

AI Insights

The case involves M/S Isagro (Asia) Agrochemicals Pvt Ltd, which challenged an interim order by the CESTAT that referred the classification of their product, 'Siapton 10L', to a larger bench. The product was initially classified under Chapter 31 as a fertilizer, but the classification was contested by the customs authorities, leading to a reclassification attempt under Chapter 38 as a plant growth regulator. The High Court's decision focused on the legal implications of reopening a classification issue previously settled by the Supreme Court, and whether the CESTAT's referral to a larger bench was justified.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 802584 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 19-02-2020
• Assessment Year: misc
• Other Referred Cases: Northern Minerals Limited Vs. Commissioner of Central Excise, New Delhi, V. M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax, Karnataka at Banglore, Pernod Ricard India (P) Ltd. Vs. Commr. of Cus., ICD, Tughlakabad, Medley Pharmaceuticals Ltd. Vs. Commr. of C. Ex., & Cus., Daman, Assistant Collector of Central Excise Vs. Dunlop India Ltd., Caryaire Equipments India Ltd. Vs. Ministry of Finance, Ruchi Soya Industries Ltd. Vs. Union of India, Anil Products Limited Vs. Commissioner of C. Ex Ahmedabad-II, Union of India Vs. Coastal Container Transporters Association
• Laws Referred To: Central Excise Tariff Act, 1985, Central Excise Act, 1944, Customs, Excise & Service Tax Appellate Tribunal
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ANKIT SHAH
• Assessee Lawyers: DEVAN PARIKH; RAJ VYAS
• Keywords: Central Excise Duty; Counter veiling duty; Customs Classification; Fertilizer; Interim order; Plant Growth Regulator; Writ of Certiorari
• Section: 25; 11AB; 11AC; 265; 226; 11A(1); 11AA

Judgement Text

"C/SCA/5841/2019 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 5841 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE V.P. PATEL ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ====================================== M/S ISAGRO (ASIA) AGROCHEMICALS PVT LTD Versus UNION OF INDIA ====================================== Appearance: MR DEVAN PARIKH SENIOR COUNSEL WITH MR RAJ K VYAS (8559) for the Petitioner Nos. 1, 2 MR ANKIT SHAH(6371) for the Respondent No. 2 NOTICE SERVED BY DS(5) for the Respondent No. 1 ====================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE V.P. PATEL Date : 19/02/2020 Page 1 of 62 C/SCA/5841/2019 JUDGMENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. The present petition has been preferred under Article 265 read with Article 226 of the Constitution of India with following prayers: (A) Your Lordships be pleased to issue a Writ of certiorari or any other appropriate writ, order or direction quashing and setting aside Interim Order No. 71­ 72/2018 dated 29th October 2018 passed by the Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad as per Annexure­P to this petition; (B) That this Honourable Court be pleased to direct the Hon'ble Tribunal to decide the issue as per the law settled by the Hon'ble Supreme Court and various judgments of the Hon'ble Tribunal and taken in keeping with the circulars issued by the Board. (C) Pending admission, final hearing and disposal of this petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned order No. 71­72/2018 dated 29th October 2018 passed by the Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad as per Annexure­P to this Page 2 of 62 C/SCA/5841/2019 JUDGMENT petition. (D) Any other further relief as may be deemed fit in the facts and circumstances of the case please be granted; Thus, what is essentially under challenge in this petition is the interim order No.71­72/2018 dated 29th October 2018 passed by the Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad. 2. Facts in brief, as could be culled­out from the memo of the petition, deserve to be set out as under: 2.1 The petitioner no.1 is a company registered under the Companies Act, 1956 inter alia engaged in manufacture of agrochemical products falling under Chapter 38 of the Central Excise Tariff Act, 1985. The petitioner no.1 has been importing the product viz; Siapton 10L since May 2003 under Chapter Sub Heading 31010099 as fertilizer. After bringing the said product in their factory, they carry out activity viz; repacking from bulk pack to small packs and also carry out labeling activity. Since there is no deeming fiction in Chapter 31 of the CETA, 1985 that repacking from bulk pack to small/retail packs and relabeling amounts to manufacture so as to give rise to duty liability, the petitioner no.1 has been removing the said product without payment of duty under the same chapter heading in which the said product, in bulk pack, is being imported. 2.2 It is contended in the petition that in the month of May 2003, for the first time petitioner no.1 had imported the product in question. The customs authorities had classified this product under Chapter Heading 3101 for the purpose of collection of Basic Customs Page 3 of 62 C/SCA/5841/2019 JUDGMENT Duty but for the purpose of collection of Counter Veiling Duty (CVD), the said product was classified under Chapter Heading 3102. It is pertinent to note that levy of Counter Veiling Duty damages or classification under Central Excise Table which is identical to the Customs tariff since years. 2.3 It is further contended in the petition that the Divisional Assistant Commissioner of Central Excise, Ankleshwar was informed about the said facts vide letter dated 1st July 2003. In turn, the Division Office had allowed the petitioner no.1 to remove the said product at NIL rate of duty provisionally vide letter dated 1st September 2003. 2.4 It is contended in the petition that the petitioners preferred an appeal against classification determined by the Customs Authorities, before the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Mumbai­III. Considering the legal aspects involved, the Commissioner (A) had set aside the classification determined by the Customs authorities and classified the product under Chapter Heading 3101 even for collection of CVD, vide Order In Appeal No.195/2003 dated 30th December 2003. 2.5 It is contended in the petition that the Deputy Commissioner of Central Excise, Ankleshwar had also finalised the provisional assessment vide letter dated 3rd January 2004 allowing to remove the product, in question, under Chapter Heading 3101 of CET, 1985 in terms of the OIA passed by the Commissioner of Customs (A). In terms of the above facts and since there was no deeming fiction in Chapter 31 about manufacture, the petitioner was removing the said product without payment of duty and also giving effect of removal of the said product in the monthly returns for the period involved. The monthly returns were accepted by the jurisdictional Central Excise office Page 4 of 62 C/SCA/5841/2019 JUDGMENT without any objection. This issue in the context of classification of the product as a fertilizer has been an issue of dispute between the Assessee and the Department. 2.6 The petitioners contended that while conducting the audit in the year 2008, the audit party took objection regarding classification of the product on the basis of the leaflet/label of the product and without any substantive material and base, it has been contended that the product, in question, is Plant Growth Regulator and falling under Chapter heading 3808. The objection was communicated by the Range office vide letter dated 29th July 2008. The compliance was also furnished by the petitioner vide letter dated 1st September 2008. 2.7 It is further contended in the petition that the department did not accept the compliance and other documents including orders of the Commissioner of Customs (A), Mumbai­III and the Deputy Commissioner, Ankleshwar and started to issue periodical Show Cause Notices proposing to demand duty under Section 11A(1) of the Central Excise Act, 1944; to recover interest under Section 11AB/11AA of the Central Excise Act, 1944; and to impose penalty under Section 11AC of the Central Excise Act, 1944 and Rule 25 of the Central Excise Rules, 2002. The details of the show cause notices are as under :­ Sr. No. SCN No. Period involved Amount involved 1 V (Ch­28) 3­21/Dem/08 dated 16­09­2009 August 2004 to July 2009 46518295 2 V(Ch.28)3­18/Dem/ADC/ 2010 dated 17­05­2010 August to December 2009 3986592 3 C(Ch.31)3­39/Dem/2010 dated 30­12­2010 January to October 2010 11154039 4 V(Ch.28 & 29)3­18/Div.III/ ADC/2011­12 dated 21­09­ 2011 November 2010 to March 2011 3058147 Page 5 of 62 C/SCA/5841/2019 JUDGMENT 5 V(Ch­38)3­28/Dem/2011 dated 16­04­2012 April to September 2011 14212388 TOTAL 78929431 The petitioner contended that the main and only contention in the above said SCNs is that in terms of the description given in the said technical documents/papers indicate that Siapton 10L is a plant bio­ stimulant, further a plant bio stimulant is a plant growth stimulant. Hence, Siapton 10L is a plant growth regulator which is covered under Chapter heading 38089390 of the CET, 1985 which attracts duty. 2.8 The petitioner replied in detail to all the Show Cause Notices explaining legal position. The Commissioner of Central Excise, Surat­II, however did not take into account any vital and undisputable facts and the legal points advocated in the petitioner's reply and confirmed the demand of duty totally Rs.7,89,29,341/­ (the amount involved in all the SCNs) under sub section (1) of Section 11A of the Central Excise Act, 1944; ordered to recover interest under Section 11AB/11AA of the Central Excise Act, 1944; imposed penalty totally Rs.5,46,38,295/­ under Section 11AC of the CEA, 1944 and under Rule 25 of the CER, 2002; vide OIO No.65 to 69/Commr./Surat­II/2012. The following periodical Show Cause Notices were also issued. Sr. No. SCN No. Period involved Amount involved 1 V (Ch­28, 29, 31 & 38)3­ 51/Div.III/ADC/12­13 dated 21­09­2012 October 2011 to March 2012 4141032 2 V (Ch­38)3­21/Dem/2012 dated 16­04­2013 April to September 2012 4527851 3 V (Ch­28)3­42/Dem/2013 dated 03­09­2013 October 2012 to March 2013 8223449 TOTAL 26892332 Page 6 of 62 C/SCA/5841/2019 JUDGMENT However, being aggrieved with the OIO no.65 to 69/Commr./Surat­II/2012 dated 10­10­2012 and OIO No.SUR­EXCUS­ 002­COM­062 to 064­13­14 dated 10­01­2014 passed by the Commissioner of Central Excise, the petitioner preferred the appeal before the Customs Excise & Service Tax Appellate Tribunal (CESTAT), Ahmedabad under Section 35B of the Central Excise Act, 1994. 2.9 The petitioner contended that there is no dispute that the basic ingredients contained in the import are amino acids and peptides. The test result specifically points­out that the active ingredient contained in the import of goods is nitrogen. It was pointed­out that the same product is imported all over the world and in all countries, the same is assessed, registered and used as fertilizer. It was further pointed­out that in this case, the product in question was having amino acids nutrients and the said product was classified as fertilizer under Chapter­ 31 and not the Plant Growth Regulator under Chapter­38. A Misc. Application was also filed before the Hon'ble Tribunal to demonstrate how the present product clearly satisfies the circulars. Perusal of the said circular would demonstrate that both the circular required that the product in question was required to be “compound” and not “mixture”. The active ingredient contained in the product was either nitrogen or phosphorus or potassium and the same must be classified as fertilizer. Hence, the circulars required to go into the issue whether the active ingredients contained in the product were nitrogen, phosphorus or potassium and to be decided accordingly. 2.10 The petitioner contended in the petition that the circular, as a matter of fact laid down the list of specific compounds which are considered to be Plant Growth Regulators (PGRs) and it was argued that RGRs are well established products and not merely amino acids and Page 7 of 62 C/SCA/5841/2019 JUDGMENT peptides. Thereafter, the Tribunal disagree on one point of reasoning of the bench in the case of Northern Minerals and without referring to the decision as per the circulars or recognizing the gravity of the fact that the Hon'ble Supreme Court had rejected the tax appeal on merits, referred the issue to the larger Bench on one aspect only of the reasoning of the said judgment dated 29th October 2018 being interim order no.71­72 of 2018 and the same is impugned in this petition. 3. Learned counsel for the petitioners submitted that it cannot be open to any authority in the country to reopen the issue concluded by the Apex Court. It is further submitted that there is a primary distinction between SLP and Tax Appeal and this distinction is well established in law. The dismissal of SLP in limine may or may not lead to a binding precedent of the Apex Court, but when tax appeal is dismissed on merits, it would mean that the Apex Court endorsed in full the judgment on merits passed by the lower Court. It submitted that it is quite absurd to reopen the issue settled by the Apex Court. 4. Learned counsel for the petitioners submitted that while considering the SLP, the Apex Court exercises discretionary jurisdiction and may not exercise the same even if it may or may not agree with the lower Court on merits. It is submitted that though the point in question is not considered to be of substantial relevance, the appeal is a statutory right. The rejection or dismissal of appeal by the Apex Court clearly lends the stamp of apex Court on the judgment of the Court below. It is however, submitted that in the present case the Apex Court dismissed the appeal on merits and in such circumstances it is not permissible to the tribunal to reopen the issue concluded by the Apex Court. 5. It is submitted that it is in quite dispute that the active Page 8 of 62 C/SCA/5841/2019 JUDGMENT ingredient in case of Northern Minerals and in the present case, produce i.e. amino acids and peptides are same. However, considering the said aspect the Apex Court confirmed the view that the product having amino acids as a primary material must be considered and classified as fertilizer as held by the Apex Court. It is further submitted that when the Apex Court held that the product having amino acids as a primary material must be considered and classified as fertilizer, how the tribunal arrived at conclusion that a product of some of the assessee containing the same active ingredient should not be considered as a fertilizer and therefore, the order of the tribunal is ex­facie and without jurisdiction. 6. It is submitted that merely because the latter bench has some disagreement with one or two of such aspects, it could not be the reason to refer the issue to a larger bench. It is further submitted that in the tribunal's order in case of Northern Minerals, it is held that “amino acids only promote plant growth by providing nutritional support.” Further in that order it is held that “Plant Growth Regulators under Chapter 3808 must be a separate chemically defined compound.” It is submitted that on such aspects, the product in question therefore, cannot be classified as a Plant Growth Regulators and this entire reasoning has been affirmed by the Apex Court. It is thus, submitted that it cannot be open for the tribunal to seek­out one point from the judgment and refer the aspect to a larger bench when the entire judgment as such is confirmed by the Apex Court. Therefore, learned counsel for the petitioners submitted that there is a jurisdictional error on the part of the tribunal insofar referring the matter is concerned. 7. Learned counsel for the petitioners submitted that it ought not to be open for one Bench to unsettle the position of law settled by so many judgments of the tribunal in case of so many manufacturers like Page 9 of 62 C/SCA/5841/2019 JUDGMENT the petitioners. It is further submitted that the aforesaid issue is quite irrelevant in the context of the issues to be considered as per the Department's own circular. It is also reiterated that there are specific well known Plant Growth Regulators and if the product does not fall in the said list, they ought not to be classified as such. It is submitted that the circular also provide that so long as the active ingredient contained in the product is nitrogen, phosphorus or potassium, then the product must be classified as fertilizer. It is submitted that Chapter No.6 to Chapter no.31 is required to be reproduced hereunder. “For the purposes of Heading­3105, the term “other fertilizers” applies only to the products of the kind used as fertilizers and containing, as an essential constituent at least one of the fertilizing elements nitrogen, phosphorus or potassium”. Thus, the very basis of the inquiry in all such cases is whether the product in question contains nitrogen, phosphorus or potassium or whether it contains any other compound which is a non­ plant growth regulator. Needless to state, the burden of proof lies on the Department. The facts of this case further demonstrate that the test has been done by the Department themselves. The test reports demonstrate beyond a doubt that the product does not contain any Plant Growth Regulator and the only active ingredient is nitrogen. Now, in such circumstances, the issues stand concluded by the aforesaid circulars that the product must be classified as fertilizer.” Page 10 of 62 C/SCA/5841/2019 JUDGMENT 8. Learned counsel for the petitioners submitted that the issue sought to be referred to the larger Bench has no relevance to the base laid down by the circulars. It is submitted that such circulars are issued for the purpose of uniformity and for avoidance of litigations. Therefore, referring such issue to the larger Bench when the circulars in question require completely different inquiry to be made. 9. Learned counsel for the petitioners submitted that amino acids are known­source of nitrogen. Substantial proof in this regard was placed by the assessee on record. It is further submitted that referring the issue to a larger Bench is clearly without jurisdiction and contrary to the circulars themselves. 10. Learned counsel for the petitioners placed on record the written submissions, which in verbatim reads as under :­ “1. The issue involved in the present case stands settled by a direct decision of the Hon'ble Tribunal in the case of Northern Minerals Limited V/s. Commissioner of Central Excise, New Delhi reported in 2001 (31) E.L.T. 355 (Page­247). 2. The Hon'ble Supreme Court of India has dismissed on merits the statutory civil appeal filed by the Department against the said judgment and order [2003 (156) E.L.T.­AI6 (page­251)]. Thus, on merits, the issues stand settled by the Hon'ble Supreme Court dismissed a statutory civil appeal on merits. Page 11 of 62 C/SCA/5841/2019 JUDGMENT 3. Furthermore, the Government of India, Ministry of Finance has issued Circular No.1022/10/2016­CX dated 06.04.2018 bringing to rest the issue of classification of product under the competing heads “Plant Growth Regulations” (PGR) and “Plant Growth Promoters” (PGP). After taking opinion from I.A.R.I. (Indian Agricultural Research Institute), issued a circular and clarified that P.G.Rs. are (i) not nutrients (ii) they are compound (iii) they promote inhibits or modified growth and development in plants, (iv) they are in the nature of plant hormones like AUXINS CUTOKININS, GIBBERELLINS “Promoters” and ABSCISIC ACID, ETHYLENE (both inhibitors). A list of PGRs was also placed along with the circular (page­256). As against this, it was clarified that P.G.Rs. are fertilizers. Under Chapter­31 of the Central Excise Tariff, more specifically, Chapter Note­6 thereof, once it is found that at least one of the essential elements i.e. nitrogen phosphorous or potassium is the essential constituent, then the product must be classified as a fertilizer (circular at page­252). 4. Thus, not only was the issue covered by the Hon'ble Supreme Court dismissal of the Department's appeal on merits, but also by the Page 12 of 62 C/SCA/5841/2019 JUDGMENT circular issued by the Board. 5. It is settled law that the circulars issued by the Board are binding. (1) 2018 (359) E.L.T. Page­433 (2) 2014 (301) E.L.T. Page­273 (3) 2008 (231) E.L.T. Page­22 6. The test reports carried out by the Department themselves on the product demonstrate beyond the doubt that the only and main ingredient in the product is nitrogen (NVR=Non Value Residue) and phosphorous at 12.9% and 6.8%. It also shows that there are not plant hormones and that the product is only a mixture of proteins and amino acids (Page­211). 7. In order to placing beyond any doubt, the appellants filed Misc. Application before the Hon'ble Tribunal (page­258) to bring on record all the plant growth regulators registered under the Insecticides Act (page­261). They also put on record the test result of their product carried out by I.C.A.R., Pune specifically stating that no plant growth regulators are detected in the product (page­274). At page­276, the test report shows that the product is primarily nitrogen and amino acids. Page 13 of 62 C/SCA/5841/2019 JUDGMENT 8. The only activity carried out by the appellants is that to import their product SIAPTON­10L and only after diluting it, the same is repacked and sold. This fact is not disputed. 9. For the purpose of customs, when the product is imported, the same is held to be a fertilizer falling under Chapter­31010099 (Order of the Commissioner­Appeals page­34). The assessments have also been accordingly finalized (page­36). However, for some strange reasons, the very same product after a mere dilution is now sought to be classified under Tariff 38089390 as a plant growth regulator instead of plant growth promoters. 10. The testing heads are 31010099 (page­26) and 38089390 (page­31). It was argued that as the matter is completely covered by a judgment of the Hon'ble Supreme Court of India and the circular of the Board, there can be no question of taking any other view of the matter. To the surprise of the appellants, despite the fact that the Hon'ble Supreme Court has accepted the judgment and reasoning of the Hon'ble Tribunal and has dismissed the Department's statutory appeal on merits, the Hon'ble Tribunal has sought to hold that the judgment in Northern Page 14 of 62 C/SCA/5841/2019 JUDGMENT Minerals is wrong and, therefore, referred the same to the larger Bench despite the fact that the Hon'ble Supreme Court has accepted the same. Interim Order No.71­72/2018 dated 29.10.2018 is impugned in this petition is at page­277. 11. It is submitted that the order is clearly in subordination of the authority of the Hon'ble Supreme Court of India, it cannot be open for any judicial forum in the land to take a different view, once the Hon'ble Supreme Court of India takes a particular view of the matter. The judgments of the Hon'ble Supreme Court of India in light of Article 141 of the Constitution are law of the land and cannot be even distinguished as per inquirium, sub silention, obitor, etc. 12. It is not in dispute by the Hon'ble Tribunal that the issue otherwise stands settled. On page­ 279, there is a reference to the aspect of re­ packing. On page­280, there is a reference to the fact that the produce is primarily constitute of amino acids. On page­280, there is a reference to the fact that the product is internationally recognized as a fertilizer. Now, in para­5 on page­284, the Hon'ble Tribunal admits that the product in question only has various amino acids. From the bottom of page­288, and more importantly, in middle of page­290 and it is Page 15 of 62 C/SCA/5841/2019 JUDGMENT finally found on page­292, it is found that the Hon'ble Tribunal in Northern Minerals was wrong when it held that Plant Growth Regulators may not perform only one of the functions either retire or grow or inhibit. The Hon'ble Apex Court does not mean approval of all grounds and in light thereof, on page­293, the Hon'ble Tribunal refers the matter to the larger Bench. 13. A perusal of the judgment in the case of Northern Minerals, in para­4, the product in that case also has “nutrients and amino acids” present in “DHANZYME” promotes growth of the plant as a whole and does not play any restrictive role like Plant Growth Regulators. “DHANZYME” was rich in amino acids and hence, classifiable only as “fertilizer.” The said paragraph also deals with the aspect of spraying fertilizer on the soil as well as plants being irrelevant. For that, a reference to para­2 of the said judgment shows that the appellant in that case was making two kinds of products; one was only by re­packing after dilution exactly like the present case and the second was by making granular and spraying actual ingredient on top. 14. The issue in the context of re­packing into similar pack is conclusively settled in one paragraph, in para­7.1, wherein it is held that if Page 16 of 62 C/SCA/5841/2019 JUDGMENT the appellants imported a material which is classified of import under Chapter­3101.00 and only re­packs he same, then the said activity is not a manufacturing activity as no new product comes into existence and hence, no duty can be charged at all. The present case is exactly the same and stands conclusively covered by para­7.1 itself. 15. Even apart from the aforesaid, on a detailed consideration of the issue, in para­7.3, on referring to technical literature, holds that “in the instant case, the Department has no case that DHANZYME could inhibit or otherwise modify plant growth the appellant's plea that the product contains only amino acids and other nutrients and, therefore, only promotes plant growth has not been successfully dislodged in the Commissioner's order.” In para­7.4, reference was made to other decisions where even existence of small amounts of enzymes was held to be okay. Thus, there can be no doubt that the product in the case of Northern Minerals and in the present case is exactly the same, i.e. based on amino acids and peptic (peptics are short chain of amino acids). It is thus held unequivocally that a product having amino acids as its base is only mean that nutrition which contains nitrogen and is not a plant growth regulator. Page 17 of 62 C/SCA/5841/2019 JUDGMENT 16. This judgment, as submitted above, is confirmed on merits by the Hon'ble Supreme Court of India. 17. There is a primary and fundamental distinction between dismissal of a statutory appeal by the Hon'ble Supreme Court and dismissal of a discretionary remedy like and S.L.P. by the said Court. While, the latter does not create a binding precedent, the dismissal of statutory appeal and that too on merits clearly has an effect of the Hon'ble Supreme Court endorsing on merits the judgment of the Hon'ble Tribunal, it cannot be then open for any lower authority to differ or take a separate view. 17.1 This view is specifically taken in the judgments reported at (I) (2000) 5 SCC – 373 (Paras­8 and 9), (ii) 2010 (256) E.L.t. Page­161 (SC) (Para­32). 18. A reference may be made to the judgment of the Hon'ble Allahabad High Court reported at 2005 (179) E.L.T. 572 (Paras­22 & 24). It has been specifically held by His Lordship Justice Katju that dismissal of an S.L.P. without giving reasons does not amount to merger of the lower Court's order, however, a dismissal of an appeal under Section 35L (of the Central Excise Act) by Page 18 of 62 C/SCA/5841/2019 JUDGMENT the Hon'ble Supreme Court would amount to a merger even if the Hon'ble Supreme Court does not give reasons. Section 35L provides a regular form of appeal if such an appeal is dismissed with or without reasons, the judgment of the Hon'ble Supreme Court dismissing the appeal is binding on the Hon'ble High Court also. 19. A reference in this regard may also be made tot he decision of the Hon'ble Supreme Court in the case of Kanaklaxmi Finance, 1991 (55) E.L.T. 433 (Paras­4 and 8) wherein, the Hon'ble Supreme Court is ailed to set aside strictures passed against the Authorities which failed to follow binding decision of the higher authorities. The Hon'ble Supreme Court, as a matter of fact, observed that “the observations of the High Court should be kept in mind in view and utmost regard should be paid by the Adjudicating Authorities and the appellate authorities to the requirement of judicial favour and the need for giving effect to the orders of the higher appellate authorities which are binding on them.” The observations of the Hon'ble Supreme Court in AIR 1985 SC 330 Page­335 is also very apposed. Hon'ble Supreme Court held that it is impossible for the higher Court to give a judgment which satisfies all concern nonetheless, it is imperative that such judgments and Page 19 of 62 C/SCA/5841/2019 JUDGMENT observations be reasonably followed. 20. Apart from the aforesaid, even a binding circular has not been considered. This is also a jurisdictional error. 21. A preliminary issue was raised by the respondent in the context of maintainability of the writ petition as the main issue one on classifications. It is submitted that the appeal provided under a Statute is a far lower pedestal then the powers under Article 226 of the Constitution. It can hardly be argued that by way of a statutory appeal, the very power under the constitution is taken away. It is due to this that the Hon'ble High Court exercised its power only in case where there is an ex­facie lack of jurisdiction or some error which goes to the very root of the matter. However, merely because a appeal lies to the Hon'ble Supreme Court on classifications under the Statute, the powers under Article 226 of the Constitution are not abrogated. 22. Furthermore, when fundamental errors are shown, this very Hon'ble High Court has entertained petitions even in the context of the matter pertaining to classification inasmuch as, even the present petitioners are not claiming any decision on classification, but on the baser issue Page 20 of 62 C/SCA/5841/2019 JUDGMENT that referring the matter to the larger Bench, in such circumstances, in itself, without jurisdiction. In similar circumstances, this Hon'ble High Court in the case of Anil Products Ltd., 2010 (257) E.L.T. 523 (Para)12) and in the case of Ruchi Soya Industries 2014 (307) E.L.T. 852 (Para­ 13.1, 14 and 14.1) held that when the issue to be considered is a baser issue showing an error going to the root of the matter, the petition under Article 226 of the Constitution of India is maintainable even if the fundamental issue is not on classification. It is submitted, therefore, that even a preliminary issue has been covered by decisions of this very Hon'ble High Court.” 11. Learned counsel for the petitioner relied on the following judgments. (1) In case of V. M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax, Karnataka at Banglore, reported in (2000) 5 Supreme Court Cases 373. (2) In case of Pernod Ricard India (P) Ltd. Vs. Commr. of Cus., ICD, Tughlakabad, reported in 2010 (256) E.L.T. 161 (S.C.). (3) In case of Medley Pharmaceuticals Ltd., Vs. Commr. of C. Ex., & Cus., Daman reported in 2011 (263) E.L.T. 641 (S.C.). (4) In case of Assistant Collector of Central Excise Vs. Dunlop India Ltd., reported in AIR 1985 SC 330. (5) In case of Caryaire Equipments India Ltd., Vs. Ministry of Page 21 of 62 C/SCA/5841/2019 JUDGMENT Finance, reported in 2005 (179) E.L.T. 522 (All.). (6) In case of Ruchi Soya Industries Ltd., Vs. Union of India, reported in 2014 (307) E.L.T. 852 (Guj.). (7) In case of Anil Products Limited Vs. Commissioner of C. Ex. Ahmedabad­II, reported in 2010 (257) E.L.T. (Guj.). 12. As against the aforesaid submission of the learned cousnel for the petitioner, the learned counsel for the respondents invited Court's attention to the affidavit­in­reply wherein the respondents have taken details contention on both the counts viz. resisting the petition on account of the order impugned in this petition being interim order only referring the matter to the Larger Bench and the fact that the writ petition on the subject matter would not be permissible. The detail contentions were extensively referred to by the learned counsel for the respondents, which could be summarized as under :­ 13. Learned counsel for the respondents submitted that no fundamental or legal rights of the present petitioner have been violated because of any action or inaction on the part of the present respondent, so as to call for interference by this Hon'ble Court and on this ground alone the present petition is not maintainable in law and the same deserves to be dismissed in limine. 14. Learned counsel for the respondents submitted that M/s. Isagro (Asia) Agrochemicals Pvt. Ltd., (petitioner) are holding Central Excise Registration No.AAACI8431LXM001 for manufacture of excisable goods falling under Chapter 28, 29, 31 and 38 of the Schedule of the Central Excise Tariff Act, 1985. 15. He further submitted that during the course of audit of Page 22 of 62 C/SCA/5841/2019 JUDGMENT records of the petitioner in December 2007, it was observed that the assessee has been classifying their final product “Siapton 10L” as “Fertilizer” under Chapter sub heading No.31010099 of Central Excise Tariff Act, 1985 and clearing the products without payment of duty. On being asked the assessee produced following documents of the product before the Central Excise audit officers :­ (i) Label of Siapton 10L (500 ml) (ii) Booklet supplied along with product Siapton 10L (500ml) (iii) Technical Bulletin (iv) Letter dated 6th May 2003 issued by the Directorate of Plant Protection Quarantine and Storage, Faridabad. 16. It is submitted that the Siapton 10L is defined as unique product of natural origin having multiple activities as a “plant bio stimulant”, an anti­stress agent, a nutritional equilibrator, an enhancer in the improved use of macro and micro elements and as an indirect improver of activity of some enzymatic systems to bring about a tremendous boost in quality and quantity of the product. But none of the said documents/papers (technical literature) indicate that Siapton 10L is a fertilizer; that the petitioner was asked to submit the relevant documents in support of their claim that “Siapton 10L” is classifiable as Fertilizer under chapter 31, but they had not responded in the matter. 17. It is submitted that the description given in the said technical documents / papers indicated that Siapton 10L is a plant 'bio stimulant', further a plant 'bio stimulant' is a plant growth stimulant. It is further submitted that Siapton 10L appears to be a plant growth regulator which appears to be covered under chapter heading 3808.93 of the Central Excise Tariff Act, 1985 (Herbicides, anti­sprouting products Page 23 of 62 C/SCA/5841/2019 JUDGMENT and plant – growth regulators and similar products) and the said product appears to be falling within sub­heading No.3808 93 90 which attracts Central Excise duty at the appropriate rate. 18. It is submitted that sample of Siapton 10L was drawn on 17th November 2009 and was forwarded to the Chemical Examiner, Central Excise & Customs Laboratory, Vadodara to determine the correct classification of the product. The Chemical Examiner, Central Excise & Customs Laboratory, Vadodara vide test report dated 3rd September 2010 submitted the report, which is enclosed by the petitioner along with petitioner as Annexure J and relevant extract of which is reproduced verbatim below. “Test Report – The sample is in the form of brown coloured viscous liquid, i) N = 12.9% ii) K20 = 0.003% iii) K205 = 0.2% iv) N.V.R. = 75.5% v) pH = 6.8% The sample is other than Mineral, Chemical and Organic Fertilizer (Animal/vegetable). It is not labelled as fertilizer. This type of product does not find mentioned under fertilizer (Control Order No.1985 as fertilizers). The sample is a mixture of proteins and Amino Acids which regulates the plant growth. The sample under reference can be considered as plant growth regulator.” 19. It is further submitted that the petitioner was issued show cause notice (5 show cause notices) for the period of August, 2004 to Page 24 of 62 C/SCA/5841/2019 JUDGMENT September, 2011 proposing to recover Central Excise Duty of Rs.7,89,29,431.00 under Section 11A of Central Excise Act, 1944 along with interest under Section 11AB/11AA of Central Excise Act, 1944 and various penalties under Section 11AC of the Central Excise Act, 1944 and Rule 25 of the Central Excise Rules, 2002. The show cause notices were adjudicated by the Commissioner, Central Excise, Customs & Service Tax, Surat­II Commissionerate vide Order in Original No.65 to 69/Commr./Surat­II/2012 dated 10th October 2012, whereby, the Adjudicating authority confirmed the duty demanded in the show cause notices along with interest and penalty. 20. It is submitted that thereafter, three more show cause notices were issued for the subsequent period of October 2011 to March 2013 demanding Central Excise duty amounting to Rs.2,68,92,332.00 under Section 11A of the Central Excise Act, 1944 along with interest under Section 11AB/11AA of the Central Excise Act, 1944 and various penalties under Section 11AC of the Central Excise Act,1944 and Rule 25 of the Central Excise Rules, 2002. The show cause notices were adjudicated by the Commissioner, Central Excise, Customs & Service Tax, Surat­II Commissionerate vide order in Original no.SUR­EXCUS­ 002­COM­062 to 064­13­14 dated 10th January 2014, whereby, the Adjudicating authority confirmed the duty demanded in the show cause notices along with interest and imposed penalty. 21. It is submitted that being aggrieved with the orders passed by the Commissioner, Central Excise, Customs & Service Tax, Surat­II Commissionerate, the petitioner filed appeals before Hon'ble CESTAT, Ahmedabad. The CESTAT vide their interim order no.71­72/2018 dated 24th October 2018 has disagreed with the findings/observations of the Hon'ble Tribunal, Delhi in the case of Northern Minerals Limited Vs. CCE as reported in 2001 (131) ELT 355 (Tri. Del), therefore the matter has Page 25 of 62 C/SCA/5841/2019 JUDGMENT been referred to Larger Bench for answering the following questions of law (at para 6 of interim order):­ “It is necessary for a plant growth promoter to be able to simultaneously inhibit growth or otherwise modify (apart from promotion) plant process, to qualify as plant growth regulator under heading 3808 of Central Excise Tariff Act, 1985. OR So long as it promotes by modifying life processes of a plant it qualifies as plant growth regulator under heading 3808 of Central Excise Tariff Act, 1985.” 22. It is submitted that being aggrieved with interim order of the Hon'ble CESTAT, Ahmedabad the petitioner has filed instant Special Civil Application before the Hon'ble High Court under Article 226 of the Constitution of India. 23. It is submitted that the following facts and legal position on adjudication of issues pertains to Classification and valuation matter are required to be brought into the notice of this Hon'ble Court prior to submitting para­wise comments on the petition of the petitioner. 24. It is submitted that the order under dispute is an interim order passed by the Division Bench of the Hon'ble CESTAT, Ahmedabad. The Hon'ble CESTAT, Ahmedabad has neither dismissed the appeal filed Page 26 of 62 C/SCA/5841/2019 JUDGMENT by the petitioner nor has given any adverse judgment against the petitioner. The Division Bench has referred the matter to Larger Bench to answer the question on the issue of classification of the product, as the Division Bench of the Hon'ble Tribunal, Ahmedabad has found that there is crucial difference in facts in the decision of Tribunal in case of Northern Minerals Limited Vs. CCE as reported in 2001 (131) ELT 355 (Tri. Del), the order which has been relied upon by the petitioner before the tribunal in support of their classification of the product under Chapter 3101 of the Central Excise Tariff Act, 1985. 25. It is submitted that the Hon'ble CESTAT, Ahmedabad has constituted a Larger Bench to take up the above issue and hearing was held by the Larger Bench on 3rd April 2019. However, the further hearing was deferred/adjourned as the petitioner has filed the present SCA before the Hon'ble High Court. The Larger Bench of the Hon'ble Tribunal passed the following order vide order dated 3rd April 2019. “The Larger Bench has assembled today as a Division Bench of this Tribunal referred as issue for determination by the Larger Bench. It is after the Larger Bench has assembled, that the order dated 25th March 2019 passed by the High Court of Gujarat in the Writ Petition filed by the appellant to assail the referring order has been brought to our notice. The writ petition is to come up for final hearing on 22nd April 2019. In such circumstances, it is considered appropriate to defer the hearing as the referring order has been assailed in the Writ Petition.” Page 27 of 62 C/SCA/5841/2019 JUDGMENT 26. It is submitted that as per the provisions of Section 35G of the Central Excise Act, 1944 an appeal against an order of the Tribunal shall be filed before the Hon'ble Court except the issue or dispute pertains to valuation or classification of the product. Section 35G(1) of the Central Excise Act, 1944 is re­produced hereunder for ease of reference. Section 35G(1) “An appeal shall lie to the High Court from every order passed by an appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.” 27. It is submitted that as per the provisions of Section 35 L (1) (b) of the Central Excise Act, 1944 an appeal against an order of the Tribunal relating to classification and valuation matters, shall lie to the Hon'ble Supreme Court. Section 35L of the Central Excise Act, 1944 is re­produced hereunder for ease of reference. “Section 35 L (1) An appeal shall lie to the Supreme Court from – (a) any judgment of the High Court delivered ­ (i) in an appeal made under Section 35G; or (ii) on a reference made under Section Page 28 of 62 C/SCA/5841/2019 JUDGMENT 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under Section 35H, in any case which, on its own motion or an oral application made by or on behalf of the party aggrieved after passing of the judgment, the High Court certifies to be fit one for appeal to the Supreme Court. (b) any order passed (before the establishment of the National Tax Tribunal) by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or the value of goods for the purpose of assessment. (2) For the purpose of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment.” 28. It is further submitted that this Hon'ble Court in case of the Commissioner of Central Excise and Customs, Vapi Vs. M/s. Sarla Performance Fibers Ltd in Tax Appeal no.2012 of 2010 vide order dated 19th January 2012 held, “We may notice that exclusion clause in sub­ section (1) of Section 35G is worded in an expansive manner and excludes all appeals Page 29 of 62 C/SCA/5841/2019 JUDGMENT arising out of orders of the tribunal relating among other things to the determination of any question having a relation to the rate of duty of excise. In other words, what is excluded from the purview of the High Court's jurisdiction is not merely an order of excise but any order which concerns determination of any question which has relation to such rate of duty of excise. Expression “any question having a relation to the rate of duty” is a wide one. With above discussion, if we revert back to the facts of the case, as already noted, the dispute between the parties and which came to be settled by the tribunal by the impugned order is with respect to the question whether the manufacturers are required to pay education cess on the computation of the customs duty and the CVD on which, once they have already paid such eduction cess. The tribunal ruled in favour of the manufactures and rejected the Revenue's case that such education cess was required to be paid once again. To our mind, such decision of the tribunal would certainly be covered under the expression “the order determining a question having relation to the rate of duty of excise”. If the department is correct in its stand, the manufacturers would have to pay excise duty at a rate higher than what they have been paying. In other words, computation of excise duty would have to include component of education cess. On the other hand, if the manufacturers are correct Page 30 of 62 C/SCA/5841/2019 JUDGMENT in their stand, such education cess would be excluded. In any case, it would have a direct bearing on the rate at which manufacturers should pay the excise duty on their clearance in the DTA from EOU Units. In that view of the matter, we are of the opinion that the respondents' preliminary objection is required to be upheld. All Tax Appeals are dismissed.” In view of above, any order determining a question having relation to the rate of duty of excise is not maintainable before the High Court as in the case of instant petition. 29. It is submitted that the petitioner's allegation that the tribunal to reopen an issue settled by the Hon'ble Apex Court is contrary to the facts. It is further submitted that the product under dispute in case of Northern Mineral Vs. Commissioner of Central Excise as reported in 2001 (131) ELT 355 (Tri. Del) was “Dhanzyme”. The dispute of classification of the product under the present case is “Siapton 10 L”. Further, the contents of the product “Dhanzyme” and “Siapton 10 L” are different. It is also submitted that the Division Bench has referred the matter to Larger Bench to answer the question on the issue of classification of the product under Section 35D of the Central Excise Act, 1944, as the Division Bench of the Hon'ble Tribunal, Ahmedabad has found that there is crucial difference in facts in the decision of Hon'ble Tribunal in case of Northern Minerals Limited vs. CCE as reported in 2001 (131) ELT 355 (Tri. Del), the order which has been relied upon by the petitioner before the Tribunal in support of classification of their Page 31 of 62 C/SCA/5841/2019 JUDGMENT product under Chapter 3101 of the Central Excise Tariff Act, 1985. Therefore, it is submitted that the petitioner's submission that the tribunal is reopening the issue settled by the Hon'ble Apex Court is misleading and misinterpretation of facts. 30. It is submitted that the Hon'ble Tribunal has given a clear finding why don't they agree with the findings of the tribunal in case of Northern Minerals Limited Vs. CCE, which is reproduced hereunder : “It is apparent that most PGR perform only one function of either retarding growth or inhibiting growth or, deflolianting or stimulating growth. Thus, the observation of tribunal in the said case appears to be misplaced. The said decision has been approved by the Hon'ble Apex Court, however, the approval of Hon'ble Apex Court does not mean approval of all grounds of the order. In the said case, the product was being applied to soil as against the fact that PGRs are not applied to soil but directly to plant. A fact recorded in the said order, in para 7.3, reproduced above. Thus, in the said case of facts were different on a crucial issue. In view of the above, the conclusion reached by the Tribunal that – “In the instant case, the Department had no case that “Dhanzyme” could inhibit or otherwise modify (apart from promoting) plant processes. Page 32 of 62 C/SCA/5841/2019 JUDGMENT The appellants plea that the product contained only amino acids and other nutrients and, therefore, only promoted plant growth has not been successfully dislodged in the Commissioner's order” appears to be erroneous. A plant growth promoter, so long as it promotes growth by altering the life processes of plant, will be a plant growth regulator. It is not necessary that it shall also be able to inhibit or otherwise modify (apart from promoting) Plant processes.” It is therefore submitted that there is no infirmity in the interim order of the tribunal to refer the issue to larger bench of tribunal for proper classification of the product. 31. It is submitted that as discussed above, the Hon'ble Tribunal has given a clear finding or reason for why don't they agree with the findings of the tribunal in case of Northern Minerals Ltd., Vs. CCE as reported in 2001 (131) ELT 355 (Tri. Del). Further, the Chemical Examiner, Central Excise & Customs Laboratory, Vadodara vide test report dated 3rd September 2010 unambiguously recorded as under :­ “The sample is other than Mineral, Chemical and Organic Fertilizer (Animal/vegetable). It is not labelled as fertilizer. This type of product does not find mentioned under fertilizer (Control Order No.1985 as fertilizers). The sample is mixture of proteins and Amino Acids which Page 33 of 62 C/SCA/5841/2019 JUDGMENT regulates the plant growth. The sample under reference can be considered as plant growth regulator.” It is further submitted that the petitioner has not challenged the findings of the test report of their product. Therefore, the tribunal rightly referred the issue to Larger Bench to give answer to the question put before the Bench. Therefore, it appears that no interference of this Hon'ble Court is required at this juncture. 32. It is submitted that the product under dispute in the instant petition and the product under dispute in case of Northern Minerals (supra) are totally different. It is therefore, submitted that the ratio of aforesaid judgment cannot be applied in the present case and hence, there is no infirmity in the order of the Hon'ble Tribunal to refer the issue to larger bench of tribunal for proper classification of the product. 33. It is submitted that the order of the tribunal under challenged is only an interim order and this order have not enforceability and the the same has not made any injustice or prejudice to the petitioner. It is further submitted that the Hon'ble Tribunal has already constituted a Larger Bench to answer the question raised by the Division Bench of the tribunal and the hearing of the Larger Bench has been adjourned on account of the present Writ Petition filed by the petitioner before this Hon'ble Court. 34. It is also submitted that the petitioner has appropriate legal remedy under Section 35 L of the Central Excise Act, 1944 before the Apex Court, if an adverse final order is passed by the Tribunal. Further, Page 34 of 62 C/SCA/5841/2019 JUDGMENT this Hon'ble Court has no jurisdiction to decide an issue or order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for purposes of assessment. Therefore, it appears that the petitioner is indirectly trying to get an order from this Hon'ble Court on the issue of classification of the product by filing a writ petition against the interim order of the Hon'ble Tribunal, for which this Hon'ble Court has no jurisdiction for the same. 35. It is submitted that the petitioner's submission that the impugned order is without jurisdiction and arbitrary is totally incorrect. The Hon'ble Tribunal is within the jurisdiction to refer the matter to Larger Bench and the allegation with regard to violation of Articles 14 and 19(1)(g) of the Constitution of India is totally ill­founded. 36. It is submitted that Hon'ble Supreme Court of India in case of Venkateshwara Theatre Vs. State of A.P. (1993) 3 SCC 677 held : “...20. Article 14 enjoins the State not to deny to any person equality before the law or the equal protection of the laws. The phrase “equality before the law” contains the declaration of equality of the civil rights of all persons within the territories of India. It is a basic principle of republicanism. The phrase “equal protection of laws” is adopted from the Fourteenth Amendment to the U.S. Constitution. The right conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike Page 35 of 62 C/SCA/5841/2019 JUDGMENT both in privileges conferred and liabilities imposed. Since the State in exercise of its governmental power, has of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws. It is however, required that the classification must satisfy two conditions, namely, (i) it is founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational relation to the object sought to be achieved by the Act. It is not the requirement that the classification should be scientifically perfect or logically complete. Classification would be justified if it is not palpably arbitrary. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment.” 37. It is submitted that the Hon'ble Court while discussing the applicability of Article 14 to taxing statutes, held “When it comes to taxing statutes, the law laid down by this Court is clear that Article 14 of Page 36 of 62 C/SCA/5841/2019 JUDGMENT the Constitution can be said to be breached only when there is perversity or gross disparity resulting in clear and hostile discrimination practiced by the legislature, without any rational jurisdiction for the same.” It is therefore submitted that the contention of the petitioner that the interim order is ultra vires and violative of Article­14 and Article 19(1) (g) of the Constitution of India is not correct. 38. It is submitted that the order under dispute is an interim order passed by the Division Bench of the Hon'ble CESTAT, Ahmedabad. It is submitted that the Hon'ble CESTAT, Ahmedabad has neither dismissed the appeal of the petitioner nor has given any adverse judgment against the petitioner. The Division Bench has referred the matter to Larger Bench to answer the question on the issue of classification of the product, as the Division Bench of the Tribunal, Ahmedabad has found that there is crucial difference in facts in the decision of Hon'ble Tribunal in case of Northern Minerals (supra) the order which has been relied upon by the petitioner before the tribunal in support of their classification of the product under Chapter 3101 of the Central Excise Tariff Act, 1985. 39. It is contended that the Hon'ble CESTAT, Ahmedabad has constituted a Larger Bench to take up the above issue and a hearing was held by the Larger Bench on 3rd April 2019. However, the further hearing has deferred/adjourned as the petitioner has filed the present SCA before the Hon'ble High Court. The Larger Bench of the Hon'ble Tribunal passed the following order dated 3rd April 2019. “The Larger Bench has assembled today as a Page 37 of 62 C/SCA/5841/2019 JUDGMENT Division Bench of this Tribunal referred as issue for determination by the Larger Bench. It is after the Larger Bench has assembled, that the order dated 25th March 2019 passed by the High Court of Gujarat in the Writ Petition filed by the appellant to assail the referring order has been brought to our notice. The writ petition is to come up for final hearing on 22nd April 2019. In such circumstances, it is considered appropriate to defer the hearing as the referring order has been assailed in the Writ petition. The matter is, accordingly, adjourned to a date to be notified by the registry.” 40. It is submitted that as per the provisions of Section 35G of the Central Excise Act, 1944 an appeal against an order of the Tribunal shall be filed before the High Court except the issue or dispute pertains to valuation or classification of the product. Section 35G(1) of the Central Excise Act, 1944 is re­produced hereunder for ready reference. Section 35G (1) “An appeal shall lie to the High Court from every order passed by an appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the Page 38 of 62 C/SCA/5841/2019 JUDGMENT case involves a substantial question of law.” 41. It is further submitted that as per the provisions of Section 35 L (1) (b) of the Central Excise Act, 1944 an appeal against an order of the Tribunal relating to classification and valuation matters, shall lie to the Hon'ble Supreme Court. Section 35L of the Central Excise Act, 1944 is re­produced hereunder for ready reference. “Section 35 L (1) An appeal shall lie to the Supreme Court from – (a) any judgment of the High Court delivered ­ (i) in an appeal made under Section 35G; or (ii) on a reference made under Section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under Section 35H, in any case which, on its own motion or an oral application made by or on behalf of the party aggrieved after passing of the judgment, the High Court certifies to be fit one for appeal to the Supreme Court. (b) any order passed (before the establishment of the National Tax Tribunal) by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or the value of goods for the purpose of assessment. Page 39 of 62 C/SCA/5841/2019 JUDGMENT (2) For the purpose of this Chapter, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment.” 42. It is further submitted that this Hon'ble Court in case of the Commissioner of Central Excise and Customs, Vapi Vs. M/s. Sarla Performance Fibers Ltd., in Tax Appeal No.2012 of 2010 vide order dated 19th January 2012 held, “We may notice that exclusion clause in sub­ section (1) of Section 35G is worded in an expansive manner and excludes all appeals arising out of orders of the tribunal relating among other things to the determination of any question having a relation to the rate of duty of excise. In other words, what is excluded from the purview of the High Court's jurisdiction is not merely an order of excise but any order which concerns determination of any question which has relation to such rate of duty of excise. Expression “any question having a relation to the rate of duty” is a wide one. With above discussion, if we revert back to the facts of the case, as already noted, the dispute between the parties and which came to be settled by the tribunal by the impugned order is with respect to the question whether the manufacturers are required to pay education cess Page 40 of 62 C/SCA/5841/2019 JUDGMENT on the computation of the customs duty and the CVD on which, once they have already paid such eduction cess. The tribunal ruled in favour of the manufactures and rejected the Revenue's case that such education cess was required to be paid once again. To our mind, such decision of the tribunal would certainly be covered under the expression “the order determining a question having relation to the rate of duty of excise”. If the department is correct in its stand, the manufacturers would have to pay excise duty at a rate higher than what they have been paying. In other words, computation of excise duty would have to include component of education cess. On the other hand, if the manufacturers are correct in their stand, such education cess would be excluded. In any case, it would have a direct bearing on the rate at which manufacturers should pay the excise duty on their clearance in the DTA from EOU Units. In that view of the matter, we are of the opinion that the respondents' preliminary objection is required to be upheld. All Tax Appeals are dismissed.” 43. Learned advocate for the respondents relyied on the following authority and submitted that the present petition is pre­mature and petitioners have no case on merits and the petition deserves to be dismissed. Page 41 of 62 C/SCA/5841/2019 JUDGMENT (1) In case of Union of India Vs. Coastal Container Transporters Association, reported in 2019 SCC Online SC 274. 44. We have heard the learned counsels for the parties and perused the papers. 45. The petitioners by way of this petition has assailed the order of the Tribunal dated 29th October 2018 passed by the Central Excise and Service Tax Appellate Tribunal (CESTAT) whereunder the tribunal has referred the question to the Larger Bench as could be seen from the operative part of the order impugned in para­6, which is reproduced as under :­ “6. In view of the above, the issue needs to be referred to a Larger Bench for determination of following question :­ “Is it necessary for a plant growth promoter to be able to simultaneously inhibit growth or otherwise modify (apart from promotion) plant processes, to qualify as plant growth regulator under heading 3808 of Central Excise Tariff Act, 1985. OR So long as it promotes growth by modifying life processes of a plant it Page 42 of 62 C/SCA/5841/2019 JUDGMENT qualifies as plant growth regulator under heading 3808 of Central Excise Tariff Act, 1985.” 46. Learned counsel for the petitioner submitted that the tribunal bench ought to have appreciated the fact that the decision rendered by the Delhi Bench in case of Northern Mineral (supra) ought to have been followed by the tribunal as the said decision was upheld by the Supreme Court as the appeal preferred thereupon had been dismissed on merits. The Supreme Court's order dismissing appeal on merits had effect of merger and therefore, the observations of Northern Mineral (supra) could be said to be totally accepted. The Supreme Court leaving no room for any deviation by anyone as the said becomes law of the land. 47. Learned counsel for the petitioner has cited number of judgments of the Supreme Court mentioned in his submissions hereinabove in support of his contention of merger. There cannot be any dispute qua proposition of law canvassed on behalf of the petitioner that the Supreme Court while rejecting the statutory appeal even if it has passed the cryptic order while rejecting the appeal, it can be said that the order of the lower authority was approved by the Supreme Court under the theory of “merger” and hence, the same would be binding upon all the concerned. 48. Learned counsel for the petitioner submitted that the CESTAT, Ahmedabad therefore ought not to have passed the impugned order referring the matter to the tribunal and making artificial distinction for not agreeing with the observation of Delhi Bench and Page 43 of 62 C/SCA/5841/2019 JUDGMENT therefore, to that extent the order impugned deserves to be quashed and set aside. 49. Learned counsel for the respondents resisted the petition by inviting Court's attention to the detailed reply filed on behalf of the revenue to justify that the distinction drawn by the tribunal in the order impugned needs no interference by this Court as no harm is caused to the petitioners in any manner. The tribunal has merely made reference to the Larger Bench and pursuant to the order thereupon did met once but not heard the matter in view of the pendency of present petition and deferred its further hearing and therefore, this Court may not interfere therewith. The provision of Central Excise cited for indicating that how and in what manner the High Court has a limited jurisdiction and why the High Court should not embark upon examining these issues only when the interim order of reference to the Larger Bench is under challenge. 50. The entire controversy, which revolves around the issue as to whether the decision rendered by the Bench in Northern Mineral (supra) could be said to be so conclusive a decision as to leave no room for further examination of this Bench. The said decision is placed on record of this petition at page no.247. 51. It is required to be noted at this stage that the product in question before the Delhi Bench in case of Northern Mineral (supra) “Dhanzyme” and therefore, the majority discussion in the case of Northern Mineral (supra) was based upon the ingredients characteristics and constitution of the said product. Whereas in the instant case, the product is Siapton 10L. Thus, both the products are different. The Delhi Page 44 of 62 C/SCA/5841/2019 JUDGMENT Bench in case of Northern Mineral (supra) has recorded submission of the counsel for the appellant therein in para­4. The relevant portion thereof deserves to be extracted hereinbelow so far as it touches upon the aspect of the product, which was under consideration therein viz. Dhanzyme. “4. Shri V. Lakshmikumaran, Counsel for the appellants, submitted that appellants had purchased Biozyme from Samruddhi and Wockhardt under brand names 'Sampdazyme' and 'Wokazim' respectively and had only carried out repacking of that product into smaller packings of 1000 ml, 500 ml, etc., for sale under their own brand name “Dhanzyme”. The suppliers of Biozyme had classified their product under CSH 3101.00 and the Department had not proposed to revise that classification. There was no Chapter Note in Chapter 31 of the Central Excise Tariff Schedule which provided any legal fiction (as in Chapter Note 2 of Chapter 38) defining the activity of repacking of bulk product as 'manufacture'. Therefore, Counsel submitted, there was no justification on the part of the Commissioner in classifying the “Dhanzyme” brand goods under a Chapter Heading different from 31.01. Ld. Counsel, further, questioned the correctness of the reliance placed by the Commissioner on Chapter Note 2 of Chapter 38. That Chapter Note could be relied on for holding Page 45 of 62 C/SCA/5841/2019 JUDGMENT any activity of repacking of a bulk product to be “manufacture”, only if the bulk product fell in Chapter 38. In the appellants' case, the bulk product was classified by Samruddhi and Wockhardt under Chapter 31 and not under Chapter 38 and such classification had the approval of the Department. It was without applying his mind to this aspect of the matter that the Commissioner placed the appellants' products under CSH 3808.20. Counsel further submitted that it was the Department's burden to show that the appellants' product was different from the bulk product supplied by Samruddhi and Wockhardt and had resulted from a manufacturing activity, but the department did not successfully discharge that burden. There was not even any attempt on the part of the department to rebut the appellants' contention that the department had never proposed to revise the classification of Biozyme manufactured by Samruddhi and Wockhardt and supplied by them in bulk quantities under their own brand names to the appellants as bio­fertiliser under CSH 3101.00. Referring to the classification, by the adjudicating authority of “Dhanzyme” as a plant growth regulator under CSH 3808.20, ld. Advocate submitted that the appellant's product contained nutrients which were characteristic of fertilizers, but a plant growth regulator could not Page 46 of 62 C/SCA/5841/2019 JUDGMENT have any nutrient in it. Ld. Counsel referred to scientific literature on the subject and emphasised the point that plant growth regulators were organic compounds other than Nutrients, which in relatively small amounts could inhabit, promote or otherwise alter/modify physiological processes in plants. The appellants' product “Dhanzyme” contained nutrients and only promoted plant growth, which was a function squarely attributable to fertilisers. In this connection, counsel also referred to HSN Explanatory Notes, which also said that plant growth regulators were intended to inhibit or promote physiological processes in plants. Nutrients and amino acids present in “Dhanzyme” promoted growth of the plant as a whole and did not play any restrictive role like a plant growth regulator. Counsel also questioned the reasoning of the Commissioner that a fertiliser should be applied directly to the soil so as to increase its fertility and “Dhanzyme” liquid which was used for spray over the plant foliage could not be considered as a fertiliser. The appellants had marketed not only “Dhanzyme” liquid but also “Dhanzyme” in granular form. While “Dhanzyme” liquid formulation was applied to the plant, the granular form was applied to the soil to provide nutritional support to the plant. Fertilisers could be applied on the Page 47 of 62 C/SCA/5841/2019 JUDGMENT plant foliage as well as to the soil. For instance, urea granules were applied to the soil, whereas urea solution was used as a liquid spray on plants. In any case, urea was a fertiliser only. Referring to literature on the subject, ld. Advocate submitted that any substance which contained amino acids (as a source of nitrogen to plants) could only be classified as fertilisers. “Dhanzyme” was rich in amino acids and hence classifiable only as a fertiliser. He submittted that the presence of traces of hormones like cytokinins and auxin precursors in “Dhanzyme” would not take the product outside the definition of fertilizer inasmuch as the product could perform its essential function (as fertiliser) of promoting the growth and development of plants without any aid from the said hormones. Ld. Advocate heavily relied on literature in support of his contention that “Dhanzyme” was calssifiable as a Bio fertiliser.” (Emphasis supplied). The Delhi Bench of the Tribunal in case of Northern Mineral (supra) in para nos.7.1, 7.2, 7.3 and 7.4 of its judgment discussed in detail the product in question, which deserves to be extracted and reproduced hereunder. “7.1 We have carefully examined the submissions. We are primarily concerned with Page 48 of 62 C/SCA/5841/2019 JUDGMENT the classification of the appellants’ goods branded \"Dhanzyme\". The goods cleared by the appellants under the said brand name were in two forms, one tin liquid form and the other in granular form. The liquid product was admittedly smaller packings of “Biozyme”. a bio­fertiliser supplied in bulk quantities to the appellant­company by M/s. Samruddhi and We Wockhardt under the brand names \"Sampdazyme\" and “Wokazim” respectively. It is the appellant’s consistent claim that the said bulk products branded “Sampdazyme” and “Wokezim” were classified by the manufacturers thereof under CSH 3101.00 and that the Department had never proposed to revise such classification. We note that this claim of the appellants has not been rebutted by the department. What the appellants did was simply to repack the bulk products of \"Sampdazyme\" and \"Wokazim\" brand received from Samruddhi and Wockhardt into smaller packings of 1000 ml, 500 ml, 180 ml, 90 ml and 30 ml and sell the same under their own brand name \"Dhanzyme\". in the absence of any Chapter Note in Chapter 31 of the Central Excise Tariff Schedule creating a legal fiction that repacking of bulk product into smaller packings amounted to manufacture, the aforesaid repacking activity of the appellants could not be held to be a process of manufacture within the meaning of Section 2(t) Page 49 of 62 C/SCA/5841/2019 JUDGMENT of the Central Excise Act inasmuch as that activity did not bring into existence any commodity different in character, use or commercial identity from the bulk product. Therefore liquid \"Dhanzyme” was not excisable and the demand of duty on the product is not sustainable. 7.2 As regards the appellant’s granular product \"Dhanzyme\", we note that the product was obtained by spraying liquid “Dhanzyme” over granules of Bentonite clay and that the granules so obtained were to be applied to the soil, unlike liquid “Dhanzyme\" itself which was for direct application to the plant. The Bentonite clay granules with a spray of liquid “Dhanzyme\" over them are not the same product as liquid “Dhanzyme\" in the mind of the ultimate customer i.e.. the farmer. While liquid “Dhanzyme” is to be applied directly to the plant, the granular product is to be applied to the soil. Therefore, in the mind of the Fustomer, granular “Dhanzyme” is different in character and use from liquid “Dhanzyme\". It would follow that granular ‘Dhanzyme” emerged out of a process of “manufacture\" within the scope of Section 2(t) of the Act and the product would be excisable. However, we 0nd that on the classification of the product. Id. Commissioner has not taken into Page 50 of 62 C/SCA/5841/2019 JUDGMENT account al‘l the materials placed before him by the appellants, nor has he applied his mind to the ciassihcation of the bulk product as approved by the department at the end of Samruddhi and Wockhardt. 7.3 The five reasons stated in the SCN for classifying ‘Dhanzyme’ as Plant Growth Regulator (in short. PGR) under SH 3808.20 appear to have been approved in toto in the impugned order. Those reasons (as in SCN) read as under : \"(i) The literature of the product taken over from the party itself describes the product as a plant growth promoter. (ii) The leaflet says Cytokinins and Auxin precursors contained in Dhanzyme are plant growth promoters. which induce and control seed germination, flowering, transition from vegetative to reproductive stages, fruit settling and maturation 0f seeds. The functions, as stated here, clearly indicate that Dhanzyme regulates various activities of the plants from vegetative to reproductive stages. (iii) It enhances photosynthesis in plants and also helps in Cell growth. Page 51 of 62 C/SCA/5841/2019 JUDGMENT (iv) It does not appear to increase the fertility of soil as is in the case of fertilizers. It works directly on the plants. (v) Significantly it is not covered as a fertilizer in Fertilizer Control Order. 1985. where the fertilizers are covered. it is. therefore, obvious that statute does not recognise Dhanzyme as a fertilizer\". The Commissioner appears to have held plant growth promoter to be synonymous with plant growth regulator. He has fallen into a patent error here. A plant growth promoter will only promote growth of the plant and will not inhibit it. On the other hand. a plant growth regulator can inhibit, promote or otherwise alter physiological processes in plants. The relevant HSN Note is clear to this effect. Kirk­ Othmer “Encyclopaedia of Chemical Technology\" (3rd Edition ~ Volume 18) introduces PGRs as follows: “Plant­growth regulators, other than nutrients, usually are organic compounds. They are either natural or synthetic compounds and are applied directly to a plant to alter its life processes or structure in some beneficial Page 52 of 62 C/SCA/5841/2019 JUDGMENT way so as to enhance yield. improve quality. or facilitate harvesting. Plant hormones, i.e., phytohormones, are plant­ produced growth regulators and, therefore, are naturally occurring plant substances. Plant­growth regulators, however, apply to phytohorrnones as well as synthetic compounds.” “Plant Physiology\" (4th Edition) by Robert M. Devlin & Francis H. Witham gives the following description : “Plant regulators are organic compounds other than nutrients that in small amounts promote, inhibit, or otherwise modify a physiological process in plants\". J.C. Johnson's ‘Plant Growth Regulators and Herbicide Antagonists Recent Advances\" introduces PGRs as under : “Plant growth regulators are compounds. mainly organic. other than nutrients which in relatively small amounts inhibit. promote or otherwise alter physiological plant processes”. All the above literatures cited by ld. Page 53 of 62 C/SCA/5841/2019 JUDGMENT Advocate seem to be converging on the point covered by the HSN Note. They indicate that PGRs are natural or synthetic organic compounds other than nutrients and that. when applied in small amounts, they can alter physiological processes in plants. In the instant case, the Department had no case that \"Dhanzyme\" could inhibit, or otherwise modify (apart from promoting) plant processes. The appellants plea that the product contained only aminoacids and other nutrients and. therefore, only promoted plant growth has not been successfully dislodged in the Commission's order. Kirk­Othmer says that PGRs are directly applied to plants. The appellants' 'Dhanzyme' on granules was applied to sell only. The Department has had no dispute about this fact. From the literature and other evidence on record, we find that the appellants' product in question is only a bio­fertilizer capable of promoting plant growth by providing nutritional support. The suppliers of 'Biozyme' the bulk product repacked by the appellants into smaller ‘Dhanzyme' packings certified in their brochure that their product contained two major Page 54 of 62 C/SCA/5841/2019 JUDGMENT components viz. Seaweed extract and Hydrolyzed protein complex. In an apparently alternative method of manufacturing ‘Dhanzyme’ liquid in small HDPE containers, the appellants used seaweed extract powder imported from Canada\" which was sought to be classified by Customs authorities under ITC (HS) 31010000. Whether supplied by the Biozyme manufacturers or formulated by the appellants themselves from the imported seaweed extract powder, the 'Dhanzyme' liquid used for spray over Bentonite clay granules had a seaweed origin. 7.4 In the case of Leeds Kem [2000 (41) RLT 674], we had occasion to examine the question whether seaweed was a bio­fertilizer or not. In that case, after consulting technical authorities on fertilizers, we held that 'plantozyme' manufactured mainly from seaweed extract was a bio­fertilizer classifiable under Heading 31.01. We also held that the mere presence of small amounts of cytokinins in a bio­fertilizer would not detract from the latter's character of bio­ fertilizer. It was further observed. in that case, that a product to be classified as plant growth regulator under CH 38.08 must be a separate Page 55 of 62 C/SCA/5841/2019 JUDGMENT chemically defined compound. on which basis we found that the decision in Unique Farmaid (supra) holding 'floramin' to be a PGR did not help the Revenue in Leeds Kem's case. We may. contextually. observe that the DR’s reliance on the decision in Northern Minerals Pvt Ltd. v. CCE 1998 102 E.L.T. 182 wherein 4.5% aqueous solution of Alpha­Naphthy Acetic Acid (Trade name: “Dhanumon\") was held to be a PGR is equally unhelpful to the Revenue in the instant case. ‘Floramin’ and 'Alpha­Naphthyl Acetic Acid' were chemically defined organic compounds. In the instant case, the Department appears to have had no case that the ‘Dhanzyme'“ brand products of the appellants were chemically defined organic compounds. 7.5 We would adopt the relevant reasonings of ours from the case of Leeds Kem for the purpose of deciding the classification of the present appellants' 'Dhanzyme\" on granules. We hold that the ‘Dhanzyme’ on granules. cleared by the appellants during the material period was a bio­ fertjlizer classihable under CSH 3101.00 chargeable to Nil rate of duty and no duty of excise was liable to be demanded in respect thereof.” (Emphasis supplied) Page 56 of 62 C/SCA/5841/2019 JUDGMENT Thus, the Delhi Bench in case of Northern Mineral (Supra) did refer to the dictionary meaning and various discussion on “plant, growth, regulator and plant, growth promoter” to cull­out fine distinction between the two. But the research on this aspect incorporated in para 7.3 was bearing in mind the product “Dhanzyme” and its ingredients, applicability, methodology of its application and usage. In other words, it can well be said that the discussion and research was producentic viz. “Dhanzyme”. 52. Can this discussion in para 7.3 be classified as an authoritative pronouncement upon and laying down the said parameters to be applied to all the products for classifying then, either to be plant growth regular or plant growth promoter. If one examines the judgment from that angle, one has to accept that the said judgment is essentially contain research which is producentic viz. “Dhanzyme” and therefore, it cannot be said that the scope of further examination was ruled­out. We hasten to add here that had there been a specific laying down of the parameters in the judgment perhaps those parameters would have been binding factor requiring more cogent reason for deferring and referring the matter to Larger Bench if permissible under law. The Court bearing the aforesaid observation of the bench in case of Northern Mineral (supra) now needs to examine the reasoning aspects of the bench, whose order is impugned in the present petition. The order impugned contains the distinction culled­out by the bench especially in the discussion in the order itself and thereafter the bench has framed the question for reference. 53. The Court is of the view that the observation of the tribunal in its order dated 29th October 2018, reproduced hereinbelow, may not Page 57 of 62 C/SCA/5841/2019 JUDGMENT be appropriate and the same deserves to be disapproved so far as its reference to the Apex Court, the same is reproduced as under :­ “.....It appears that most PGR perform only one function of either retarding growth or inhibiting growth or, deflolianting or stimulating growth. Thus, the observation of Tribunal in the said case appears to be misplaced. The said decision has been approved by the Hon'ble Apex Court, however, the approval of Hon'ble Apex Court does not mean approval of all grounds of the order. In the said case, the product was being applied to soil as against the fact that PGRs are not applied to soil but directly to plant. A fact recorded in the said order, in Para 7.3, reproduced above. Thus, in the said case the facts were different on a crucial issue.” (emphasis supplied) The highlighted portion in the extracted portion of the order cannot be countenanced and deserves deprecation as the same was unwarranted. The question arises as to only on that count, other reasoning of the tribunal can be brush aside. 54. It is required to be noted that the decision of the Court and the tribunals are to be read not as textbook, but required to be read and applied in light of the facts prevalent thereafter. Bearing the aforesaid Page 58 of 62 C/SCA/5841/2019 JUDGMENT sentence of the tribunal occurring in the paragraph, which this Bench has found to be uncalled for, unwarranted and not appropriate. The discussion in respect of the product in question based upon the prima facie opinion of the tribunal requiring the tribunal to refer the matter to Larger Bench cannot be said to be so prejudicial to the petitioner to call for any interference. 55. The Court hasten to add here that the Court is also of the view that the learned counsel for the respondent is not wholly unjustified in pressing into service the submission and pleadings of the respondents' affidavit indicating that in such a scenario the Court should be slow in interfering with such interim order. 56. The Court reiterating at the cost of repetition that there cannot be any dispute qua the proposition of law canvassed at the bar on behalf of the petitioner that the Supreme Court's cryptic approval or the view is also and always binding upon all the Courts and adjudicating forums in the country and no forum can deviate therefrom. 57. This proposition of law needs no further elaboration and therefore, this Court is of the view that the precedent, if any, needs to be followed. However, this proposition of law cannot be stretched so as to compel the adjudicatory for a to overlook the distinguishing facts which may wholly take­out the case from the purview and covering by the view of the Court, whose judgment is cited as precedent. Therefore, it is always said that the precedents are to be read in its totality when they are laying down the proposition of law. Page 59 of 62 C/SCA/5841/2019 JUDGMENT 58. Time and again the Apex Court has in number of decisions ruled that the judgment of the Court cannot be read as the provision of the statute. The judgment on the point of law and facts with authoritative pronouncement of the principle of law, which could be applied to be situation can only be treated as ratio decidendi forming binding precedent under Article 141 of the Constitution of India. The Apex Court in case of Commissioner of Income Tax Vs. M/s. Sun Engineering Works, reported in (1993) SC 43 observed that while applying the decision to a case, the Court must carefully try to ascertain the true positive on pronouncement of law laid down in the decision in respect of the facts prevalent there. The ratio decidendi needs to be culled­out and applied. The said principle is elaborately discussed by the Court in the decision in case of Krishnakumar Vs. Union of India, reported in (1990) 4 SCC 207 and (1997) 6 SCC 564. It is also required to be noted that the precedent and ratio decidendi of that precedent will have to be applied without further embellishment or expansion by the Court of law. The Apex Court has in case of Devindar Singh Vs. State of Punjab, reported in (2010) 13 SCC page 88 held that the precedent is what is decided by the Court and not what is deducible from the judgment and decision of the Court. Therefore, the ratio decidendi of the decision is to be applied and what can be deduced therefrom cannot be treated as precedent for it being pending under Article 141 of the Constitution of India. The Apex Court has also gone to the extent of saying that the judgments are not read as Euclid's theorems as could be seen from (2010) 13 SCC 255. Bearing this principle in mind, the Court had to examine the judgment of the Delhi Bench of CESTAT in Northern Minerals (supra) and relevant paragraphs extracted hereinabove. The plain and simple Page 60 of 62 C/SCA/5841/2019 JUDGMENT reading thereof would indicate that there was a discussion, which can be said to be a product specific or producentic viz. “Dhanzyme” and supposing there was a case in respect of “Dhanzyme” or a product having all the similar ingredients that a “Dhanzyme” and also applicability perhaps there would have been no action or permissibility in the tribunal to make any reference as it would not be permissible at all. The Court has already deprecated the tribunal's reference to the Apex Court in highlighted sentence, but that in itself would not render entire order of the tribunal impugned in this petition vulnerable as it was a duty cast upon the petitioner to establish imminently that the product in question in this petition being Siapton 10L was almost similar to Dhanzyme in its ingredients, applicability and construction so as to make the decision of Northern Mineral (supra) binding upon the tribunal for preventing it from referring it to Larger Bench. 59. The Court is also of the view that this Court need not elaborately dwell upon the merits of the matter as the appropriate forum is the tribunal, which can appreciate the product, construction, ingredients and applicability in light of the circulars & orders and therefore, the aforesaid discussion is also not to be construed as rendering of any final opinion on the merits of the matter as this Court is of the view that the appropriate forum is tribunal, which can go into it. 60. The Court is of the view that the order impugned is not in any manner prejudicial to the petitioner and is only an interim order and making reference to the Larger Bench and pursuant thereof, the Larger Bench was constituted and met once, but in view of the pendency of this petition, deferred the hearing. Therefore, without any further elaboration, suffice it to say that the order impugned does not deserve to Page 61 of 62 C/SCA/5841/2019 JUDGMENT be interfered with in any manner and the discussion touching upon the merits made in this matter is purely for examining the challenge to the order impugned and the same shall have no bearing either for consideration by the Larger Bench or Tribunal Bench, where the matter is argued on merits. 61. With these observations, the present petition is disposed of. Notice discharged. (S.R.BRAHMBHATT, J.) (V. P. PATEL, J.) Rathod... Page 62 of 62 "