9911796707
TMI Blog1992 (8) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... that it may not be absolutely essential in the facts of the present case for having a Larger Bench constituted for deciding the issue. Therefore, there is difference of opinion between the Members as to whether the same should be referred to the President for constitution of Larger Bench of five members or not. That as per Statutory Provisions contained in Section 35D(1) of the Central Excises and Salt Act, 1944 read with sub-section (5) of Section 129C of the Customs Act, 1962; when there is difference amongst Members of the Benches and if there is no majority opinion, the point on which they differ, they shall make a reference to the President who shall either hear the point or points himself or refer the case for hearing of such point or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequential relief if otherwise admissible. That this is an error apparent on the face of the record as Member (J) as well as Member (T) in their respective orders have proceeded on the basis that the refund of the applicant was not cited under Notification No. 142/82 or prior to the issue of Notification No. 182/82 on 11-5-1982. The order of the Tribunal has proceeded entirely on different grounds and basis. Thus, the error goes to the very root of the case and is fatal. (iii) That the Member (J) in para (8) of the order had recorded a finding to the effect that if the appellant had not challenged the classification or paid the duty under protest, cannot now raise reclassification of goods retrospectively. It is pointed out that this f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submitted that the admitted position is that classification was not challenged by filing an appeal against its finalisation and also that duty was not paid under protest. He contended that the Deptt. had not challenged the order of Collector (Appeals) dated 4-2-1982 and hence it has to be inferred that Notification No. 182/82 dated 11-5-1982 is applicable to assessee. Therefore, the finding given by the members on its non-applicability is beyond the scope of grounds of appeal and hence it is a mistake apparent on record calling for rectification. He contended that refund application can be filed within six months even if classification is not challenged and as also held in Sarabhai Chemicals v. CC - reported in 1992 (59) E.L.T. 72, CCE v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and as the Tribunal has pronounced its finding without an opportunity having been given to the assessee, a mistake had occurred calling for rectification. He prayed that the order of the Tribunal be recalled and fresh hearing be given. 5. We have carefully considered the submissions made by both the sides and have perused the records and also the order passed by us in this appeal. There are two grounds on which the learned Consultant has argued for reopening the case by recalling the final order passed by us. 6. The first ground made by the learned Consultant is that Member (Judicial) had recommended the case for Larger Bench which had been negated by Member (Technical) and as there is difference of opinion on this point, the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the lower authorities order, a mistake has arisen in the order. This has been countered by the learned DR and in his submissions, he contended that the learned Member (Technical) had rightly gone into the question of applicability of notification and had found the appellants not being found entitled to the benefit. The learned DR had also stated that the Tribunal had the powers to go into the question of applicability of the notification on the records available before us. The arguments of the DR are quite valid and it is a settled proposition of law that the Tribunal can pronounce its order on different reasoning on the basis of the facts available from the records. Therefore, there is no mistake arising from the record for recallin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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