9911796707
TMI Blog1996 (5) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... Member tribunals create the opportunity for mature deliberation which improves and enhances individual decision making by adding perspectives and excluding or at least minimising faulty reasoning. Judicial propriety and fairness require, that so long as it is possible and feasible, the same number of Members should constitute the Bench to hear the rectification proceedings as well. It is also prudent and pragmatic and will avoid chaos. In the above perspective, we hold that the majority decision of the Customs, Excise and Gold (Control) Appellate Tribunal appealed against, is erroneous in law and so unsustainable. We set aside the orders so passed dated 5-9-1995. The appeals are allowed. - 8267-68 of 1996 - - - Dated:- 2-5-1996 - B.P. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea that the said rectification applications could not be heard by a Bench comprising of less than three Members since the final order in the appeal as also the earlier rectification order were passed by a Bench comprising of three Members. The Tribunal by a majority (2 : 1) repelled the said plea and held that the applications for rectification of mistake in the facts and circumstances, can be heard by a Bench of two Members as constituted by the President for the purpose. The said order is assailed in these appeals. 5. We heard counsel. It is seen that the final order dated 8-1-1991 in the appeals was passed by a Bench consisting of three Members - Shri I.J. Rao, Technical Member (since retired), Ms. S.V. Maruthi, Judicial Member (sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial), the third Member, to whom the matter was referred, held 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 the Hon'ble President for this purpose." (emphasis supplied). 6. During the course of arguments, Section 35D of the Central Excises and Salt Act and Rule 31A of the CEGAT (Procedure) Rules, 1982 were highlighted before us. They are as follows : "35D. Procedure of Appellate Tribunal — (1) The provisions of sub-sections (1), (2), (5) and (6) of Section 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat any order passed in the rectification proceedings will have the effect of modifying, amending or altering the final order and such rectified order becomes the final order in the appeal. And so, there is logic and propriety in holding that when once an appeal was heard and decided by a Bench consisting of three Members, the rectification proceedings which will have the effect of altering, amending or modifying the final order should also be heard by a Bench consisting of not less than three Members. 8. On hearing counsel, we are of the view that the dissenting order passed by Sri G.A. Brahma Deva, Member (Judicial) is legal and proper. It is evident from Rule 31A of the CEGAT (Procedure) Rules, 1982 that the same Bench which passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pline and fairness. Any other interpretation will bring about a situation to clothe the President of the Tribunal with arbitrary powers. Such an intention cannot be imputed in framing Rule 31A. 9.The order passed under Rule 31A will have the impact of altering, amending or modifying the final order. We are of the view that a final order passed by a Bench of three Members cannot be modified or altered or amended by a Bench consisting of lesser Members. A Full Bench is superior to a Division Bench and a Division Bench to a single Member Bench. The object for constituting a Division Bench or Full Bench, is the fact that multi-Member tribunals create the opportunity for mature deliberation which improves and enhances individual decision makin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
