TaxTMI 
TaxTMI 
2011 (7) TMI 510
X X X X Extracts X X X X
X X X X Extracts X X X X
....sc. Application No. 405 of 2009 and 115 of 2009 respectively in the reference) have come before Tribunal in the present two Misc. Applications registered as MA 487/2010 and 470/2010 respectively praying for rectification of mistake crept in Larger Bench Order dated 06.05.2010. 1.3 M/s Larsen Toubro Ltd.'s prayer before Hon'ble High Court of Delhi was for quashing the Misc. Order passed by the Larger Bench in the reference and to clarify the 46th Constitution Amendment to the extent it has no relevance for imposition of service tax. While dismissing the Writ Petition by Hon'ble Court and CM No.7894 of 2010 as reported in 2010-TIOL-714-HC-DEL-ST, it has been held that as far as clarification for 46 the Constitutional Amendment is concerned, the Court cannot dwell upon the said issue unless an issue directly would arise for interpretation of the same, for the simple reason the Court in the proceedings under Article 226 of the Constitution does not clarify a provision in the vaccume. The petitioner being intervener it has also been held that if the writ petition is entertained, the same would enable every litigant to challenge the order passed in a reference. It has further been hel....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order was passed after five and half months for which mistake crept. 3. On the other hand Ld. Dr Sri Sumit Kumar for Revenue objects to both the Misc. Applications for rectification made by of the two interveners submitting that when one of the interveners i.e. Larsen & Toubro Ltd. failed before Hon'ble High Court of Delhi in W P (C) No. 3947 of 2010 and CM No. 7894 of 2010 disposed on August 9, 2010, present two interveners have no locus standi to repetitively litigate on the same order of Larger Bench before Tribunal and such challenge is contrary to the ratio laid down by Hon'ble High Court of Delhi since the interveners seek parallel orders. 3.1 As has been held by Hon'ble High Court in Larsen & Toubro's case, the interveners are if affected by an order passed by the Division Bench of the Tribunal, they may take recourse to file an appeal before a superior forum as provided in the Statute. 3.2 It follows from the ratio laid down by Hon'ble High Court of Delhi that Larger Bench decision is made in the consultative or advisory capacity and after the Larger Bench's opinion, the matter goes back to Division Bench for decision on merit on the basis of facts and circumstanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 Following the law laid down by Apex Court relating to Larger Bench formation in this Tribunal under Customs Act, 1962 which has created in this Tribunal is explained herein. Interpreting provisions of section 129C(5) of Customs Act, (hereinafter referred to as "the Act") Apex Court in the case of Union of India v. Paras Laminates (P) Ltd. -1990 (49) E.L.T. 322 (S.C.) has laid down the law to resolve conflict of decisions of different benches of Tribunal on the same issue with better wisdom. It has been held that upon satisfactions of certain conditions, President of Tribunal exercises power to refer a matter to a Larger Bench in terms of provisions contained in Section 129C(5) of the Act, on the recommendation of a division Bench and no other authority is empowered to make reference. 7.2 Hon'ble High Court of Gujarat in the case of Colourtex v. Union of India - 2006 (198) E.L.T. 169 (Guj.) = 2008 (9) S.T.R. 426 (Guj.) has held that the Larger Bench can hear the questions referred without deriving any independent jurisdiction and has no power to decide the appeal in entirety. It has neither appellate, nor review nor Revisionary jurisdiction, but has advisory and consultative ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on amongst the Members of a Bench on an issue, the Bench has to formulate such issue and ask 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. (2). It is obvious that it is the prerogative of the President either to refer the matter to third Member or constitute a Larger Bench in case of such difference of opinion or hear the matter himself, and thereafter the majority of the opinion to form the decision. (3). Reference of matter to a Larger Bench or a third Member is entirely in the discretion of the President of the Tribunal, albeit the discretion has to be exercised judiciously. (4). There is no power vested with the Division Bench or the Single Member Bench to refer the matter directly to a Larger Bench. Neither any statutory provision gives such power to Division Bench or Single Member Bench to. do so nor there is any judicial pronouncement vesting such power upon the Division or the single Member Bench. This is essentially to maintain judicial discipline in the administration of justice by the Tribunal. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and 226 of the Constitution. In T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526, Apex Court held that "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". It was, however, conceded in all leading cases that it is very difficult to define the expression an "error apparent on the face of the record" precisely, scientifically and with certainty. 8.3 In the leading case of Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104, the Constitution Bench of Apex Court quoted the observations of Chagla, C.J. in Batuk K. Vyas v. Surat Municipality, ILR 1953 Bom 191 : AIR 1953 Bom 133 that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it. The Court admitted that though the said test might apply in majority of cases satisfactorily, it proceeded to comment that there might be cases in which it might not work inasmuch as an error of law might be considered by one Judge as apparent, patent and self- evident, but might not be so considered by an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cted must be such an error of law as can be regarded as one which is apparent on the face of the record. It is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision. 8.7 In order to amend an order under the powers of rectification of mistake conferred on the Tribunal by law the mistake should be apparent from record and appreciable without a detailed exercise for discovery thereof. Arguments on behalf of interveners shows that detailed exercise is essential to appreciate the facts and circumstances of the case. Such exercise is permissible only if an appeal is decided or power of review is exercisable which is not conferred on the Tribunal. When such a power is absent in the scheme of the law of Service Tax read with respective provisions of Customs Act 1962 under which the Tribunal was created and the service ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as real and true, conspicuous, manifest, obvious, seeming." The plain meaning of the word "apparent" is that it must be some thing which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications. Rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the interveners intend in the present case is precisely substitution of the reference order which according to law is not permissible under the provisions of the Act. 8.11 It is, no doubt, true that a mistake capable of being rectified is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on question....