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TMI Blog1990 (4) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... , the matter was listed for hearing on 10-4-1990. 3. At the very outset, Shri M.S. Arora, the learned Departmental Representative, submitted a preliminary point that in terms of Rule 26 of the Customs, Excise Gold (Control) Appellate (Procedure) Rules, 1982 [hereinafter referred to as the CECAT (Procedure) Rules], Every order of the Tribunal shall be in writing and shall be signed and dated by the Members constituting the Bench concerned . In the present instance, the two learned Members who constituted the Bench which heard the appeal were no longer in service, they having retired. Therefore, the proceedings had become infructuous and the appeal itself should be re-heard by the concerned Special Bench. In this connection, he relied upon the Tribunal s decision in Arunodaya Mills Ltd. v. Collector of Central Excise, Ahmedabad, reported in 1988 (37) E.L.T. 459 which laid down that the order of the Tribunal would be invalid unless all Members constituting the Bench were available on the date of the final order. 4. Shri N.R. Khaitan, Learned Counsel for the appellants, opposed the above contention by submitting that the Members constituting the original Bench had signed and dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of hearing on, and going into, the merits of the case all over again. Therefore, the normal principle that the authority who heard the appellant should himself decide the matter had no application in the circumstances of the present case. 5. Shri R.K. Jain, Secretary, Cegat Bar Association, who happened to be present in the Court, requested for permission to make submissions on the issue since the outcome of the present proceedings would have implication for other pending matters as well. He was permitted to make submissions. Shri Jain submitted that judicial notice must be taken of the fact of retirement of the two Members constituting the original Bench. He referred to Section 129C(5) of the Customs Act, which spoke of the opinion of the majority of the Members of the Appellate Tribunal who have heard the case including those who first heard it . This meant that the final disposal of the appeal must be by the same two Members who originally heard the appeal. Then only the requirement of disposal of the appeal by the original Bench in the light of the opinion of the majority of the Members who originally heard the appeal and of the Third Member would be satisfied. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nced, it was not a judgment. If one of the Judges constituting the Bench which heard a matter was not available at the time of delivery of the final judgment, it would not be a valid judgment because the judgment would take effect only on its pronouncement in Court. Such was not the case with the Tribunal. The Tribunal s decision in the case of Arunodaya Mills - 1988 (37) E.L.T. 459 (Tribunal) had no application because, in that case, the order of reference to the President had not been signed by one of the Members, he having already retired from service. That was not the case in the present instance where the two Members had recorded their opinions. On the reference by Shri R.K. Jain to the Tribunal s decision in the case of Basti Sugar Mills - 1989 (47) E.L.T. 404 (Tribunal) the Learned Counsel submitted that the present case was distinguishable inasmuch as there was no question of any oral order here. The opinions of the two Members of the original Bench were on record duly signed and dated. 7. I have carefully considered the submissions. The two Learned Members constituting the Special Bench which first heard the appeal, as is clear from the record, had, on consideration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of difference but that alone would not result in final disposal of the appeal. That would fall within the domain of the concerned Special Bench which has to pass the order of final disposal of the appeal in the light of the President s decision on the point or points of difference. 8. In the present case, the two Members constituting the referring Bench are no longer in service, they having retired. The question then would be whether, as contended by the learned D.R. and the learned Secretary of the Cegat Bar Association, the present proceedings have become infructuous and the proper course is for the concerned Special Bench to re-hear the appeal or, as the learned Counsel for the appellants contends, it would be proper for the concerned Special Bench to dispose of the appeal in the light of the President s decision on the point of difference, after the President hears the parties and records his decision on the point of difference. 9. Looking at the words used in the main clause of Section 129C(5) of the Customs Act, it is clear that it is a mandatory requirement that the point or points of difference shall be decided according to the opinion of the majority of the Members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench had recorded his opinion but before the other Member recorded his opinion, he had retired from service. The second Member not only recorded his separate opinion but also formulated the point of difference (arising out of the two opinions) to which the first Member was evidently not a party because he had already retired by then. It was in view of this factual situation that the three Member Bench of the Tribunal to which the matter was referred by the Senior Vice-President, functioning as President, came to the conclusion that there was no valid order of the original Bench in pursuance of which action could have been taken under Section 129C(5) of the Customs Act. In coming to this conclusion, they relied upon the Supreme Court s judgment in Surendra Singh v. State of U.P. - AIR 1954 SC 194 (paras 11, 12 and 13 of the Supreme Court judgment were noticed). The purport of these paras is that the Judge who delivers the judgment or causes it to be delivered by a Brother Judge must be in existence as a Member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act and Section 37C of the Central Excises Salt Act). 14. In the context of the issue arising for determination in the present proceedings, I find that the judgment of a Full Bench of The Madhya Pradesh High Court in Ladhuram Rameshwardayal v. Krishi Upaj Mandi Samiti, Shivpuri Ors., reported in AIR 1978 M.P. 10 (not cited before me) is very apposite. In that case, a writ petition was heard by a Division Bench consisting of Raina, J. and Bhachawat, J. They differed as to the disposal of the petition. Accordingly, they directed the case to be placed before the Chief Justice for nominating a third Judge for hearing the difference in terms of Rule 11 of Chapter I of the High Court Rules. Lodha, J. who was nominated as the third Judge recorded his opinion, whereafter the matter was placed before the Chief Justice who constituted a Division Bench consisting of Vyas, J. and Bhachawat, J. because, in the meanwhile, Raina, J. had taken over as Chairman of the Industrial Court, Indore and was not available to sit in the High Court. The question arose whether that Bench, constituted as it was, and which had not heard the matter on merits at any stage, could decide the case in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recorded his opinion) as a matter of formal expression of the decision. There is no question of fresh application of the mind on the merits of the point, on which the opinion of the third Judge has been recorded. If two Judges had first heard the matter, the point will be decided by a Division Bench of two Judges after receipt of the opinion of the third Judge. It is true that the word decided ordinarily envisages an application of the mind but such application of the mind must be restricted to two things only: (i) to find out from the three opinions what the majority opinion is and to decide the point according to the majority opinion; and (ii) to decide what relief flows from such decision, which relief the Division Bench shall be bound to give to the parties." The Court also observed in para 9 that after the receipt of the opinion of the third Judge, it is the Division Bench which decides the point, although it cannot decide the point by applying its mind de novo on the merits but is bound to decide the point according to the majority opinion of the Judges. In arriving at its conclusion, the Bench took support from the view expressed in the judgment of a Full Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) as follows:- .........After the third Judge has recorded his opinion; the case must be laid before the Division Bench for deciding the point or points which were referred to the third Judge according to the method provided by Cl. 26 of the Letters Patent and it is at this stage that a Division Bench will finally decide the case before it. It is not the requirement of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can constitute another Division Bench to decide the case according to the method provided by Cl. 26 of the Letters Patent. 17. The principles emerging from the above judgment apply with equal force to proceedings before the Tribunal in similar circumstances. Ordinarily, it would not be necessary to dilate on the point any further. However, for the sake of completeness, I shall examine the remaining submissions made before me. Now, let me examine whether it would be proper for me to hear the parties, record my opinion on the point of difference and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Third Member or, as the case may be, the President s decision. This requires no de novo determination in the sense of hearing parties again with the attendant possibility, if not certainty, of the Bench coming to a conclusion different from that indicated by the separate opinions of the two Members who initially heard the appeal and the opinion recorded by the Third Member on the point of difference between the said two Members. If de novo determination were required, evidently, notice of hearing would have been necessary but, as earlier noted, the Assam High Court has clearly laid down that at the final stage there is no question of notice or hearing. If there is no notice or hearing, the question of the successor Bench hearing parties would not arise. Its function would be to merely ascertain the majority opinion on the point of difference and dispose of the appeal in that light. 19. The Tribunal s decision in the case of Basti Sugar Mills - 1989 (47) E.L.T. 404 (Tri.) referred to by the Secretary of the Bar Association is, in my opinion, not relevant. In that case, after hearing the parties, the Bench pronounced an oral order allowing the appeal and made a note on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order on the subsequent application were taken up in writ proceedings before the Calcutta High Court. The Court found that - ........under Rule 40 of the Income Tax (Appellate Tribunal) Rules and Orders relating to the Appellate Tribunal, the Bench, which heard the appeal, shall hear it unless the President directs otherwise. Looking to the rules and regard being had to the background of the case, it is found that one of the Members of the Bench, who heard the appeal, retired in the meantime, and the remaining Member along with another Member heard the matter under reference for disposing of the subsequent application of the petitioner. This Court finds by a harmonious construction of the rule itself that the Bench should be referred to which was competent to hear the reference. After superannuation of one of the Members, if the Bench which was competent to hear the appeal has disposed of the revision application, the petitioner cannot urge that there is prejudice caused to the petitioner and the writ court having discretionary power should interfere with the matter. 22. The corresponding provision in the Cegat (Procedure) Rules, 1982, is Rule 31, which reads as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary. Here also there is a provision for constitution by the President of a Bench not inevitably consisting of the Members who heard the reference application in the first instance. The relevant provision of the Central Excises Salt Act is Section 35K. The requirement in the section is that the Appellate Tribunal shall pass such orders as are necessary to dispose of the case in conformity with such judgment. It is only proper that if the Members of the Bench who heard the reference application are available in the Tribunal, the judgment of the High Court or the Supreme Court is considered by that Bench and appropriate orders are passed in conformity with such judgment. However, if one or both of the Members of that Bench are not available, the matter surely cannot be allowed to rest. It has to be disposed of and hence the provision in the rules enabling the President to constitute another Bench for disposing of the matter in the light of the Court s Judgment. 25. The situation in the present case is analogous to, if not identical with, those referred to in the preceding paragraphs. It is necessary that after the point of difference is decided by the President in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o his parent service. Another situation could be when an application is moved by one or the other parties to the appeal requesting for reopening of the hearing in the light of certain developments or case law which were not, or could not be, brought to the notice of the Bench which originally heard the appeal. There may be other situations too. But in a situation of the type we are faced with in the present case, the matter has been fully heard and the Members who heard the appeal have recorded their opinions. Their opinions on the points arising in the appeal are not a matter of conjecture. They are a matter of record. The opinion of the Third Member or the decision of President, as the case may be, would also not be a matter of conjecture. What would remain then is that the Third Member s opinion, or the President s decision, after it is rendered, should go to the Bench which, in law, is competent to hear the appeal. As no hearing is required at this stage and, as noted earlier, there is no scope for any de novo determination of any of the points arising in the appeal, the successor Bench which, in law, is competent to hear the appeal, should dispose of the appeal in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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