1988 (7) TMI 193 - AT - Customs

Summary

Issues Involved:

1. Validity of the order of the West Regional Bench.
2. Proper formulation of the points of difference.
3. Validity of the constitution of the Bench by the Senior Vice-President.

Issue-wise Detailed Analysis:

1. Validity of the Order of the West Regional Bench:

The main contention raised by the Department was that there was no valid order of the West Regional Bench out of which any reference under Section 129C(5) of the Customs Act could arise. This was because one of the members, Shri Dilipsinhji, had retired before the final order was signed by the other member, Shri Hegde. The Department relied on the Supreme Court decision in Surendra Singh v. State of Uttar Pradesh, which held that a judgment must be pronounced by a Bench where all members are in service at the time of delivery. The Tribunal noted that Shri Dilipsinhji signed his order on 7-8-1987 and retired on 14-8-1987, while Shri Hegde signed his order on 16-11-1987. The Tribunal concluded that there was no valid order of the West Regional Bench since on 16-11-1987, there was no Bench consisting of both members. The Tribunal emphasized that a judgment does not become final until all members have had an opportunity to discuss and agree on the final decision, which was not possible in this case due to Shri Dilipsinhji's retirement.

2. Proper Formulation of the Points of Difference:

The Department argued that Section 129C(5) requires the two members to jointly formulate the points on which they differ, and in this case, the formulation was done by only one member, Shri Hegde. The Tribunal did not record a finding on this point, as it was deemed unnecessary in light of the conclusion on the first issue.

3. Validity of the Constitution of the Bench by the Senior Vice-President:

The Department contended that the reference to the Bench under Section 129C(5) could only be made by the President of the Tribunal, and in this instance, the order dated 8-12-1987 was issued by the Senior Vice-President. The appellants argued that the Senior Vice-President was functioning as the President under a notification. The Tribunal did not record a finding on this point, as it was unnecessary in light of the conclusion on the first issue.

Conclusion:

The Tribunal held that the proceedings before the Bench were incompetent due to the lack of a valid order from the West Regional Bench. Consequently, the appeals would have to be heard afresh by the West Regional Bench. The Tribunal did not address the other two points raised by the Department, as the finding on the first point was sufficient to determine the outcome of the case.