1987 (2) TMI 177 - AT - Central Excise

Summary

Issues:
- Interpretation of whether an order dismissing an appeal can be passed after setting aside lower authorities' orders.
- Determining the appropriate wording for the operative part of the order in light of the point of difference between the Bench members.

Analysis:
1. The case involved a Special Bench appeal where two members of the Bench differed on the issue of whether an order dismissing the appeal could be passed after setting aside the orders of the Appellate Collector and Assistant Collector.

2. The hearing was scheduled to address this specific point of difference, and both appellants acknowledged the hearing notice. One appellant was present, while the other did not appear, assuming that relevant arguments would be presented by the present appellant.

3. It was clarified that the hearing was not an appeal against the conclusions of the members on agreed matters but solely focused on the specific point of difference.

4. The appellant's representative confirmed awareness of the situation and stated that since both members agreed to set aside the lower authorities' orders, the appeals could not be considered as being dismissed.

5. The appellant had commenced manufacturing the goods in question and had filed a classification list under protest. No separate appeal was filed against the approval of the classification list as the focus was on the Assistant Collector's order that led to the present proceedings.

6. The respondent supported the view that the appeals should be dismissed to avoid creating an anomalous situation where the appellants' contentions would be deemed accepted.

7. The appellant referred to a specific observation in the technical member's order to support their position during the hearing.

8. The President, after considering the arguments and the orders of the members, disagreed with the respondent's argument that dismissing the appeals would imply acceptance of the appellants' contentions.

9. The President highlighted that setting aside the lower authorities' orders did not imply acceptance of the appellants' contentions and that dismissing the appeals would create more of an anomaly.

10. Reference was made to Section 35C(1) of the Central Excises and Salt Act regarding the types of orders the Tribunal may pass on appeal. The President concluded that setting aside the lower authorities' orders partially allowed the appeals based on the arguments made by the appellants.

11. The President suggested a wording for the operative part of the order that reflected the partial allowance of the appeals and directed the records to go back to the original Bench for final orders.

12. The final decision was made in accordance with the President's opinion, setting aside the lower authorities' orders and allowing the appeals to the extent mentioned in the operative part of the order.