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TMI Blog1995 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... Laxmi Textile Mills v. Collector of Central Excise, reported in 1993 (66) E.L.T. 459 (Tribunal) was also cited to support the argument that the same Bench should hear the rectification application. It was argued by the learned Counsel that on behalf of the Applicant Rule 31A of CEGAT (Procedure) Rules, 1982 was relied upon and the words ......the members who heard the appeal...... could mean the same number and same members and the exception carved out by the words ...... unless the President directs otherwise must mean such direction which would subserve the substantive rule and provide for, in the absence of same member/s who have ceased to be members, to enable President to nominte new member without affecting the minimum number who constituted the original Bench which heard the appeal. 2. In addition to the aforesaid the applicant submit that the words ...... the members who heard the appeal in Rule 31A of CEGAT (Procedue) Rule 1982 be read as the Bench who heard the appeal , which is the intention of Rule 31A with a proviso that when members of the same Bench are no longer members, can be replaced by new members but the Bench must be of the same number of members. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the Tribunal would be if a single member sitting singly were to exercise jurisdiction rightfully falling within two Members Bench in the Regional Bench matter, then the order passed by the single Member in such a matter though on merits may be right but will be a nullity due to lack of statutory jurisdiction. Therefore, the ratio of the Pandurang case supra will not cover the present situation where the Special Bench has been constituted by duly empowered authority namely the President. Again to come back to the Atma Steels Pvt. Ltd. and Others decision supra of the larger Bench of the Tribunal, it has been observed that the Customs Act confers plenary powers on the President to constitute Benches of the Tribunal for the purpose of exercising the powers and discharging the functions of the Appellate Tribunal . The larger Bench further observed that the Act further empowers the Tribunal by virtue of sub-section (6) of Section 129C of the Customs Act to regulate its own procedure and procedure of the Benches arising out of the exercise of its powers or discharge of its functions . It was also noted by the larger Bench that the Tribunal has been given widest possible amp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and fact because of an impediment arising from an earlier decision with which they cannot honestly agree. In such cases, it is necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to larger Bench. That is a power which is implied in the express grant authorising the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions. 5. The present matter relates to an application for rectification of mistake. The procedure regarding hearing of such application is laid down in the CEGAT (Procedure) Rules, 1982. Rule 31A reads as follows :- 31A. Same Bench to hear applications for rectification of mistakes - An application for rectification of mistake apparent from the record, under sub-section (2) of section 129B of the Customs Act, or sub-section (2) of sec. 35C of the Central Excises and Salt Act, or sub-section (2) of sec. 81A of the Gold (Control) Act, shall be heard by a Bench consisting of the Members who heard the appeal giving rise to the application, unless the President directs otherwise. It may be seen that Rule 31A vests President with the powers to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power vested with the President under Section 35D of the Central Excises and Salt Act to constitute a Bench consist of three members or two members, as the case may be, to hear appeals on a particular day. Section 35D of the Central Excises and Salt Act reads as under : 35D. Procedure of Appellate Tribunal. - (1) The provisions of sub-sections (1), (2), (5) and (6) of Sec. 129C of the Customs Act, 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of the functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. (2) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than three members (Two members) and shall include at least one judicial member and one technical member. (3)............." 8. According to Section 35D of the Act matter relating to Special Bench was required to be heard by Bench consist of not less than three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer it to a third member to resolve the issue in accordance with law. 10. The following point is required to be considered by the third member : In the facts and circumstances, whether an application filed by the applicants for rectifying a mistake, can be heard by a Bench consisting of two members as held by the Member(T) or it should be heard by a Bench consisting of three members since the main appeal was heard by a Bench consisting of three members as proposed by Member (J). Dated : 29-12-1994 Sd/- (G.A. Brama Deva) Member (J) Sd/- (K.S. Venkataramani) Member (T) 11. [Order per : G.P. Agarwal, Member (J), agreeing with Member (T)]. - The aforesaid question has been referred to me by the Hon ble President. 12. Heard both sides. 13. Appearing on behalf of the appellants, Shri R.N. Banerjee, learned counsel, submitted that in the instant case on the appeals filed by both the appellants, a Three Members Bench of this Tribunal comprising Shri I.J. Rao, Technical Member (since retired), Ms. S.V. Maruthi, Judicial Member (since elevated to the Andhra Pradesh High Court) and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nings recorded by the learned Judicial Member in his present proposed order. 14. In reply, Shri B.K. Singh, learned SDR, submitted that the present application can be heard by the Bench of the Two members as constituted by the Hon ble President of the Tribunal in the present case and adopted the reasonings recorded by the learned Technical Member in his proposed order in the instant case. 15. Considered. At the outset, it may be stated that the learned Technical Member, Shri I.J. Rao and the learned Judicial Member, Ms. S.V. Maruthi, who were party to the Final Order in the instant case are not available, since retired and elevated respectively. Likewise, the learned Technical Member, Shri N.K. Bajpai, who was party to the said Misc. Order No. 281/92-A is also not available since retired and the other learned Judicial Member, Shri G.A. Brahma Deva, who was party to both the Final Order and the Misc. Order, as aforesaid, is available and was one of the Members on the Bench, so constituted, for hearing the present ROM Application. 16. Sub-section (2) of Section 35D of the Central Excises Salt Act, 1944 empowers the President of the Tribunal to constitute a Special Bench for h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after analysing the provisions of the Bombay High Court Rules held that it cannot be so heard and decided by a Single Judge. It is not the case here. Thus, I agree with the view expressed by my learned brother, Shri K.S. Venkataramani, Technical Member, that the Bench of the Two Members, so constituted by the Hon ble President, to hear the present ROM Application was validly constituted. 17. As regards the view expressed by my learned brother, Shri G.A. Brahma Deva, Judicial Member, that the present application for rectification of mistake should be heard by a Bench of Three Members, it may be stated that no authority or provisions of law for taking such view has been cited by him. It does not flow from Section 35D, ibid. Moreover, it appears to me that he took the said view on the ground of propriety. But propriety, if I may say so, with due respect does not make the constitution of the Bench illegal, if otherwise validly constituted. 18. In the result, I answer the question referred to me as follows : that in the facts and circumstances of the present application filed by the appellants for rectifying the mistake can be heard by a Bench of two Members as constituted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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