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TMI Blog2009 (4) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... before the learned single Member on 30.08.2007, it was noticed by the learned single Member that there was difference in the opinions expressed in different decisions of the Tribunal on the issue as to whether service tax in relation to the goods transport service received by party during the particular period can be recovered by issuance of show cause notice beyond three years thereafter and in that connection the learned single Member noted the decisions in the matter of BPL Engineering Ltd. vs. CST - 2006 (3) STR 747 (Tri. Bang.), R. K. Marble Pvt. Ltd., -2007 TIOL-29, CCE, Jaipur vs. Mangalam Cement Ltd., - 2007 (7) STR 673 (Tri. Del.). He also the decisions of the Apex Court in the matter of CCE, Meerut-II vs. L.H. Sugar Factories Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994 relating to the service tax. Section 86 of the said Act deals with the appeals to the Appellate Tribunal and sub-para of Section 86(7) read thus "Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944". Section 35B of the Central Excise Act, 1944 deals with the powers of Appellate Tribunal. Sub-section (1) thereof that the provision of (1), (2), (5) and (6) of Section 129C of the Customs Act, 1962 shall apply in the discharge of its function under the said Act as they apply in discharge of this funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even as regards the rules which have been framed as Customs, Excise & Service Tax Appellate Tribunal Procedures Rules, 1982, nowhere provides a solution to such an eventuality. 9. The learned Advocate for the appellant, however, has drawn my attention to the decision of the Apex Court in the case of Union of India vs. Paras Laminates (P) Ltd., reported in 1990 (49) ELT 322 (S.C.). The said matter arose on account of the order passed by Division Bench of the Tribunal referring the matter to the Larger Bench in spite of their being a decision of three Member Bench on the issue which was required to be decided. The Apex Court in that regard observed thus:- "This appeal by the Union of India arises from the Judgement dated 7.12.1989 of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. In that connection, the Apex Court quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... althy functioning of the Tribunal that the President should have the requisite authority to refer the case to a larger Bench. That is a power which is implied in the express grant authorizing the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions". 12. Taking clue from the decision of the Apex Court and bearing in mind the provisions of law referred to above, it is to be noted that whenever there is a difference of opinion amongst the Members of a Bench on an issue, the Bench has to formulate such issue and asking registry to place the matter before the President of the Tribunal to do the needful in terms of Section 129C(5) of the Customs Act, 1962. It is obvious that it is the prerogat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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