TaxTMI 
TaxTMI 
2018 (8) TMI 99
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....t be constituted by any other person except the President, as prescribed under the provisions of Section129C (5). He further relied on the ruling of the Hon'ble Supreme Court in the case of UOI Vs Paras Laminates (P) Ltd. - 1990 (49) ELT 322 (SC), wherein the Hon'ble Supreme Court has stated that the President has ample power to refer the case to Larger Bench. He further submitted that, referring to UOI Vs. Srinivasan - 2012 (281) ELT 3 (SC), wherein the Hon'ble Supreme Court has observed in para 16 - "At this stage, it is to state about the rule making powers of a delegated authority. If a Rule goes beyond the rule making power, conferred by the statute, the same has to be declared ultra vires. If a Rule supplants any provision for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power which is relatable to the Rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it. It is further urged that there is a provision for delegation of power for constituting a Larger Bench or referring the matter to a Larger Bench under Section 129C (5), no rule or administrative orde....
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....he sub-section (5) of Section 129C of the Customs Act, refers to difference of opinion arising amongst Members of a Bench in a particular case and not specifically where the Members of the Bench doubt the correctness of an earlier decision. But this power can be construed to be wide enough to enable the President to make a reference where Members of a Bench find themselves unable to decide a case according to what they perceive to be correct law and fact, because of an impediment arising from an earlier decision with which they cannot honestly agree. 5. Further, we find that the Hon'ble Supreme Court in the case of UOI Vs. Paras Laminates (P) Ltd. (supra) held that; "There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognized as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that....
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....tion itself, is inevitably contingent upon remaining within the orbit of that which is intended in the statute. Exigencies may call for radical interpretations which, too, should be within the orbital reach of the creating statute; in our opinion, the present issue does not merit of such denomination as to venture on a path fraught with even the slightest possibility of controversy. The matter has been pending since 2012 and proceeds from a law that is no longer an instrument of tax and the risk of jurisdictional competence, howsoever slight it may be, with consequences for the present dispute and others yet to be decided upon by lower authorities, forbears us from concurring with the Hon'ble Presiding Member when the inevitable and imminent appointment of the President would stultify the potential for a dispute on the very issue. 8. To put it simply, Learned Authorized Representative submits that, in the absence of a President, the Tribunal may discharge the normal function of disposal of appeals by division benches, comprising of a Member (Judicial) and a Member (Technical), and by single member benches but is barred from deciding upon matters that statutorily mandate appr....
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....inated Member into the President for the purposes of section 129 and 129C of Customs Act, 1962. The entire contention of Learned Authorised Representative is that the Central Government did not, by these instruments, intend to do so as the said Government is conscious that it cannot delegate a power that is conferred statutorily on a particular office and that the statutory instruments referred ibid are limited to what it expressly articulates. 11. We do not find it necessary to tarry on the second of the instruments; it designates the nominated Member (Judicial) as Head of Department for discharge of financial and administrative functions under the General Rules and Supplementary Rules framed under rulemaking powers conferred on the President of India in the Constitution. These are not concerned, directly or tangentially, with the separate and distinctly identifiable judicial jurisdiction carved out in chapter XV of Customs Act, 1962. Indeed, the said notification does not purport to do so and the attempt by Learned Senior Counsel appearing for the appellant to validate the extensive reach of that notification, withholding the power of transfer of Members, as conferring all the....
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....onflict with section 129C(2) of Customs Act, 1962 as the jurisdictional competence to decide is not questionable when benches comprising a Member (Judicial) and Member (Technical) are, de facto, in place at single bench locations or, in multiple bench locations, assigned with the subjects to be handled. 15. Whether the power to constitute Larger Bench derives from section 129C(5) of Customs Act, 1962, as contended by Learned Authorised Representative to submit that this specific measure does not brook of any delegated authority when juxtaposed with section 129(5) of Customs Act, 1962, is not relevant. In either case, the law does not specifically bring Members, who are not the Vice-President or President, within the scheme of delegation. We would like to highlight that the circumstances in which the Hon'ble Supreme Court inferred so in Union of India v. Paras Laminates (P) Ltd [1990 (49) ELT 322 (SC)] stand substantially altered now with amendments effected therein since. Learned Senior Counsel argues that it is section 129C(2), intended to merely place a floor and source limit on the strength of a bench, that empowers constitution of a Larger Bench. We are not in agreement ....