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TMI Blog1986 (12) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer by this Bench consequent to Misc. Order No. 137/86-A dated 3-7-1986 followed by minutes dated 10-7-1986 of the President of the Tribunal. It was taken up for hearing on 18-8-1986 when Shri C.S. Vaidyanathan, learned Advocate representing the appellants urged that earlier the Bench had ordered constitution of a 5 Member Bench in view of certain conflicting decisions on the point of other Benches of the Tribunal. Shri Sundar Rajan, learned JDR who represented the respondent agreed that this was the factual position. An examination of the orders on the file showed that on 13-3-1984 Bench A consisting of the then President Shri F.S. Gill, the then Member Shri D.N. Lal and Member Shri M. Gouri Shankar Murthy had passed the following order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-12-1986 when arguments on the present prayer were heard. This particular observation becomes important for reasons which are set out in later part of this order. 4. To continue the narration, on the file being placed before the President of the Tribunal, the President by his order dated 17-9-1986 observed as follows : 3. Constitution of a Larger Special Bench would be justified only if there are shown to be conflicting decisions justifying such a Larger Bench. In order to decide whether a Larger Special Bench should be constituted, the concerned Bench which is to place the matter before the President, and the President, whose function it is to constitute Benches, are entitled to adequate assistance from the representatives of both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court held that there is no power in the Chief Justice of a High Court under the Constitution or the Letters Patent or the rules of the High Court or section 108(2) Government of India Act, 1915 to withdraw or transfer a case of which a Divisional Court is in session. The ruling discusses power of Chief Justice in paras 22 to 36. 6. During hearing Bench felt that even assuming that on 13-7-1984 the Bench may have felt reference to a Larger Bench necessary, whether this necessity would persist in view of later decision of the Supreme Court in Empire Industries Ltd. Ors. v. Union of India Ors. 1985 (20) E.L.T. 179 (S.C.) and Karnataka High Court in West Coast Paper Mills Ltd. v. Collector of Central Excise, Bangalore 1985 (20) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Petition No. 2055 of 1980 held that once the wrapping paper had been assessed to excise duty as wrapping paper prior to its use for packing or wrapping of other varieties of paper, the duty on it could not be charged a second time by adding its value to other varieties of paper and subjecting the total value of the two to central excise duty. In the later decision before the Tribunal, this decision as also the Andhra Pradesh High Court judgment in Writ Petition were cited but the Bench in view of a decision dated 9-5-1983 of the Supreme Court on principles of valuation under the Central Excises Salt Act, 1944 Bombay Tyre International case felt that it was not bound to follow the Andhra Pradesh High Court judgment or the earlier decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have also brought to the notice of the learned counsel that there is no proposal to refer the matter to the Five-Member Bench and it would be for him to go through the orders referred to earlier and after going through the same he will be in a better position to put forth his case. The suggestion has been accepted by the learned counsel. However, he wants some time to refer to those orders. Time granted. The appeal be listed for hearing on Friday, the 14th March, 1986. (underlining ours) From the portion extracted above, it would be seen that the Bench had dropped the proposal to refer the matter to the 5 Member Bench and Shri Vaidyanathan had accepted the same. Irrespective of what the Tribunal or Bench or the President do, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would not be open to this Bench to revive the proposal. This apart, there are two later decisions - one in Empire Industries case and the other in Karnataka High Court. Of this, the Karnataka High Court decision even according to Shri Vaidyanathan covers the issue involved in the present appeal. When there is a later High Court decision, the Tribunal would be justified in not pursuing this proposal for constitution of a 5 Member Bench. True effect of the decisions could, however, be appreciated only when the appeals are heard on merit. For the aforesaid reasons we do not think that in the changed situation we should accept Shri Vaidyanathan s prayer for referring the matter to the President for constitution of a 5 Member Bench. 12. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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