2009 (10) TMI 683

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.... 2. There was a difference of opinion between the Hon'ble Vice-President and the Hon'ble Member (Technical) who constituted the regular Bench which heard the appeal. The Hon'ble Vice-President had allowed the appeal with consequential relief. The Hon'ble Member (Technical), in a dissenting order rejected the appeal on merits. Hence the difference of opinion. 3. Upon having received copies of the dissenting orders, the appellant filed the present application on 21-1-2009 with a prayer to the regular Bench to "formulate revised questions" and pass supplementary order thereon after hearing. This application eventually came up before one of us [Member (Judicial)] qua Third Member nominated by the President. As it was not within the scope ....

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....icable to Service Tax appeals, the Hon'ble High Court held that even after passing dissenting orders, a Division Bench of this Tribunal could entertain an application of this kind for rectification of mistake in exercise of inherent powers for the ends of justice. Framing of issues and matters incidental thereto were recognized to be matters of procedure. Their Lordships further held that this Tribunal was possessed of the power to do procedural justice. According to them, the Regular Bench ought to have examined the present application in exercise of such power. The direction issued by the Hon'ble High Court is contained in Para 23 of its judgment, which is reproduced below : "23. For the aforesaid reasons, we direct that the appli....

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....clude legal contentions raised at the bar. It follows that issues/points to be determined in the case can be framed only after personal hearing. One of us [Member (Judicial)] was not a member of the regular Bench which heard the appeal and the other [Member (Technical)] is due to retire on the 9th of this month. It goes without saying that this very Bench is not in a position to frame the issues and proceed further in terms of the Hon'ble High Court's judgment. Nevertheless, in order to ensure that the directions of their Lordships are carried into effect, a Division Bench of this Tribunal at Mumbai should re-hear the whole case and dispose of the appeal in accordance with law as well as in terms of the Hon'ble High Court's judgment. 7. ....