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3.3 The ld. Sr. Counsel relying on the judgment of Hon'ble Supreme Court in the case of CCE v. MRF Ltd 1998 (97) E.L.T. 23 (S.C) and on the judgment in the case of India Water Proofing and Deying Works countered the argument of the ld. JDR. He submitted that the decision in Trimurti case was considered by this Tribunal in the assessee's own case reported in 2006 (203) E.L.T. 80 and held that raincoats in the case of Trimurti were not argued to have been manufactured out of rubberised textile fabrics covered by SH 50.06 and the said decision was rendered sub-silentio, having not considered, the provisions of the note of HSN classification in regard to the inputs under Chapter 62 which would be binding to arrive at a classification under the Central Excise Act. That decision did not consider the argument of Chapter 62 for which that shall not prevail in view of interpretations being given to the term "worn apparel" by Para 2 of the Judgment reported in 2006 (203) E.L.T. 80.

Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio.

A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind." (Salmond on Jurisprudence 12th Edn., p.153). In Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) KB 675, 677 : (1941) 2 All ER 11 the Court did not feel bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. It was approved by this Court in Municipal Corporation of Delhi v. Guman Kaur . The bench held that, 'precedents sub-silentio and without argument are of no moment.' The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in Regard to its ratio and the principles, laid sown therein.' Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.

4.4 Tribunal has also followed the rule of such sub-silentio. One such instance was in the matter of Surgichem in 'Salmond on Jurisprudence' Twelfth Edition Section 27 page 153 it is opined that A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because 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 favour; but point B was not argued or 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. A good illustration is Gerard v. Worth of Paries, Ltd. (1936) 2 All E.R. 905 (C.A). There, a discharged employee of a company, who had obtained damages against the company for wrongful dismissal, applied for a garnishee order on a bank account standing in the name of the liquidator of the company. The only point argued was on the question of the priority of the claimant's debt, and, on this argument being heard, the Court of Appeal granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in the subsequent case before the Court of Appeal- Lancaster Motor Co. v. Bremith Ltd. (1941), 1 KB 675 at 677 (C.A.) the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R. said that he could not help thinking that the point now raised had been deliberately passed sub-silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed.

The rule that a precedent sub-silentio is not authoritative goes back at least to 1661 - R.V. Warner (ward) 1 Keh. 661 Lev.8 when counsel said: "An hundred precedents sub-silentio are not material"; and Twisden, J., agreed: "Precedents sub-silentio and without argument are of no moment". This Rule ever since has been followed.

5. In view of our conclusion in para 4.2, both the appeals are allowed.

(Pronounced in the Open Court on 26.06.07).