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TMI Blog1997 (11) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... gistry to place the reference application before the very Member who passed the final order in the appeal, Shri K. Sankararaman, Member Technical, who had passed the final order. This order was passed in Collector of Central Excise, Allahabad v. Chandra Industries, 1996 (88) E.L.T. 155 (Tribunal). This order was passed on 25-9-1996. It was reported in the issue dated 15-11-1996 of Excise Law Times. In view of this deci- sion, the Registrar sought orders from the President who directed these reference applications to be placed before a two-Member Bench for consideration of the correctness of the order. That is how the matters have come before us. 2. Notice had been issued to the President of the CEGAT Bar Association indicating that the Bench will hear all advocates and consultants who desire be heard in the matter. In response to the notice, S/Shri K.K. Anand, J.S. Agarwal, V.S. Nankani and L.P. Asthana, Advocates and others addressed arguments. We have also heard Shri T.R. Malik, SDR. 3. Section 35G of the Central Excise Act, 1944 deals with references to High Court. On an application to be filed by Collector of Central Excise or other party with reference to an order under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the succeeding Presidents, Shri Harish Chander had also directed the Registry to post such applications before the appropriate Benches as constituted for the day. This was modified by Shri S.K. Bhatnagar, Vice President incharge by Notification No. 4/95, dated 30-5-1995 according to which reference applications and rectification of mistake applications (ROM) filed before a Bench shall be normally listed before the Bench consisting of the Members who passed the order and if any matter this is not feasible because one or the other Member (or both) is/are no longer available in the Tribunal for any reason or otherwise not practicable to constitute such a Bench due to absence of one or the other Member or otherwise, the Bench as constituted on the day the application comes up for hearing will be competent to hear and dispose of the matter. 5. Difficulties and complications were being experienced in the constitution of Benches for hearing ROMs and reference applications. In the light of the past experience, the present President issued Order No. 3/95, dated 6-11-1995 containing guidelines in the matter of posting ROMs and reference applications. The order dealt with applications ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Shri S.K. Bhatnagar, Vice President in application E/Ref./48/96-NB. We are concerned presently with the correctness of the view taken and direction given in Chandra Industries case. 7. In Elpro International Ltd. case, the final order had been passed by a three-Member Bench. There was a rectification of mistake application filed by one of the parties which was heard by a three-Member Bench which finally passed an order recalling the final order. The appellant filed further rectification of mistake applications which were placed before a two-Member Bench. One of the Members took the view that the application can be heard only by a three-Member Bench, while the other Member took the contrary view. The difference of opinion was referred to a third Member who agreed that the applications could be heard by a two-Member Bench as constituted by the President. Thus the majority view was that the application could be heard by a two-Member Bench and not necessarily by a three-Member Bench. This order was challenged before the Supreme Court. The question relating to the strength of the Bench which is to hear ROM application arising out of a final order passed by a three-Member Bench i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y hear the appeal and passed the order and in such a contingency Members who constituted the Bench may be different. It was also further observed as follows :- Normally, it will not enable the President to constitute entirely a new and different Bench, even if one or more of the Members who heard the appeal and rendered the order are available. In Chandra Industries case, it was held that the observation made in connection with ROM applications will apply equally to reference applications, since the language used in Rules 31 and 31A of the Procedure Rules is similar. This is the basis of the decision. Therefore, it is necessary to examine the language of the two Rules. 9. Rule 31 of the Procedure Rules reads as follows :- The same Bench which heard the appeal giving rise to the application for reference to the High Court or Supreme Court shall hear such application unless the President directs otherwise. Rule 31A of the Procedure Rules reads as follows :- An application for rectification of a mistake apparent from the record, under sub-section (2) of section 129B of the Customs Act, or sub-section (2) of section 35C of the Central Excises and Salt Act or sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l on which the order was passed. This view was taken on the basis of the difference in scope of the two provisions. Section 3(3) was intended to regulate the course of business between the Government and the subordinate authorities so that the State Government may satisfy itself whether detention should be approved or not, while the purpose of Section 7 was to enable the detenu to make a representation against the order. Since the scope of the two provisions and their purpose was different, the Court held that the same words in Section 7(1) of the Act must be understood as not including information or material on which the order was passed, though the same words used in Section 3(3) include such information or material. 12. The appellant before the Supreme Court placed reliance on the following passage in Maxwell s Interpretation of Statutes, Edition 10, page 522 :- It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. As against the same, the Court relied on the following passages from Craies on Statute Law, Edition 5 page 159 :- The presumption that the same words are used in the same mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, if there is no practical or other difficulties in constituting a separate Bench. 14. The purpose of reference application is not rectification of an error apparent on the face of the record. The purpose is settlement by the jurisdictional High Court of a question of law arising from the final order. Reference application does not end by the Tribunal answering the question of law or correcting an erroneous view of law taken earlier. The reference application ends either with an order drawing up a statement of the case and referring the statement to the High Court or an order refusing drawing up a statement of the case. In the latter case, the unsuccessful party has option to approach the High Court to compel reference. In other words, the purpose of the reference application is to invoke the jurisdiction of the High Court in settling a question of law arising from the final order. Therefore, the considerations which led to the conclusion that as far as possible the same Members who passed the final order should hear the rectification of mistake application, cannot apply in the matter of hearing a reference application. The decision in Chandra Industries case did not exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order passed by the President in matter of constitution of Benches. Perhaps, that may be the reason why Chandra Industries case did not deal with any of the President s orders referred to earlier by us. 16. We, therefore, hold 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 and the constitution of Benches for hearing reference applications and posting of reference applications is governed by the orders issued from time to time by the President of the Tribunal. With respect we hold that the view taken and direction issued in the Chandra Industries case are not sustainable. 17. The Bench before which an appeal is posted for hearing may adjourn the same or hear the same, or if it appears to the Bench that the subject matter of the appeal is outside the subject allotted to the Bench, may direct the matter to be posted before the President for appropriate orders. As to which Bench is to hear the appeal is a matter connected with the roster and posting of cases which is within the jurisdiction of the President. Even if a Bench is of opinion that appeal has be ..... 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