1997 (11) TMI 146 - AT - Central Excise

Issues Involved:

1. Constitution of Benches for hearing reference applications.
2. Applicability of Supreme Court's decision in Elpro International Ltd. case to reference applications.
3. Validity of the President's orders regarding the posting of reference applications.
4. Jurisdiction and powers of the Tribunal regarding the constitution of Benches.

Issue-Wise Detailed Analysis:

1. Constitution of Benches for Hearing Reference Applications:

The judgment addresses the issue of which Bench should hear reference applications under Section 35G of the Central Excise Act, 1944. Historically, reference applications have been posted before Benches constituted for the day without reconstituting them with the original members who passed the final order. This practice was confirmed by various office orders, including Order No. 16 (Tech.)/1986 and Order No. 3/95. The judgment clarifies that reference applications should be posted before the appropriate Benches as constituted during the relevant period, in accordance with the President's orders.

2. Applicability of Supreme Court's Decision in Elpro International Ltd. Case to Reference Applications:

The judgment examines the applicability of the Supreme Court's decision in Elpro International Ltd. v. Collector of Central Excise, Pune, 1996 (84) E.L.T. 406 (S.C.) to reference applications. The Supreme Court had held that rectification of mistake applications arising out of orders passed by a three-Member Bench should be heard by a Bench of the same strength. However, the judgment distinguishes between rectification of mistake applications and reference applications, noting that the purpose and statutory framework for each are different. The judgment concludes that the observations of the Supreme Court in Elpro International Ltd. case do not apply to reference applications, as the language and intent of Rules 31 and 31A of the CEGAT (Procedure) Rules, 1982 are different.

3. Validity of the President's Orders Regarding the Posting of Reference Applications:

The judgment discusses the validity of the President's orders concerning the posting of reference applications. It notes that the President's orders, such as Order No. 3/95 and Order No. 7/95, provide guidelines for posting reference applications and rectify the difficulties experienced in the constitution of Benches. The judgment holds that these orders are valid and must be followed. It also emphasizes that the Tribunal does not have the power to strike down any order passed by the President regarding the constitution of Benches.

4. Jurisdiction and Powers of the Tribunal Regarding the Constitution of Benches:

The judgment clarifies the jurisdiction and powers of the Tribunal concerning the constitution of Benches. It states that the Tribunal's powers are circumscribed by statute and rules, and it does not have powers analogous to those under Article 226 of the Constitution. The judgment underscores that the President has exclusive jurisdiction over the roster and posting of cases, and the Bench cannot issue directions to the Registry to post appeals before specific Members or Benches. Any such direction should be brought to the notice of the President for appropriate orders.

Conclusion:

The judgment concludes that the observations of the Supreme Court in Elpro International Ltd. case with reference to rectification of mistake applications do not apply to reference applications. The constitution of Benches for hearing reference applications is governed by the orders issued from time to time by the President of the Tribunal. The view taken and direction issued in the Chandra Industries case are not sustainable. The Registry is directed to post reference applications in accordance with the President's orders.

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