TaxTMI 
TaxTMI 
TaxTMI 
2009 (5) TMI 64
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....the third member that an application dated 21st January 2009 was filed for passing a supplementary order. The third member only indicated that he has no jurisdiction to hear such an application and that he will dispose of the difference of opinion without going into the correctness or otherwise of Misc. order dated 24th October, 2008. That Misc. Application till date has not been decided. 3. It is the submission on behalf of the petitioners that before the tribunal they had raised the submissions that there have been findings on some of the submissions and in respect of some others both the members have not recorded their findings though they are germane for the purpose of deciding the controversy in appeal. 4. We may gainfully reproduce the summary of the main submissions and tabulations as handed over to us at the bar by learned counsel for the petitioner. These questions arise for determination considering both the appeal memo and written submissions filed before the CESTAT. We are consequently re-producing the same: Table showing the summary of the main submissions made by the petitioners during the hearing before the CESTAT and findings if any of the Hon'ble Members on the ....
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....ct' The counsel for the revenue did not raise this issue either orally during the personal hearing or in the written submission filed by him. Thus, the Hon'ble Member (Tech) suo motu took up this point without giving any opportunity to the appellants. 8. Penalty not imposable In favour of the Petr. Against the Pet. 9. Interest not payable In favour of the Petitioner Against the Petitioner 5. Section 35(2) of the Central Excise Act, 1944 reads as under: "The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to appeal". Section 35D(1) reads as under : (sic) 6. The relevant portion of Section 129C of the Customs Act, 1962 reads as under : 129C. Procedure of Appellate Tribunal. - 1. The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof. 2. Subject to the provisions contained in....
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....d the choice for the petitioner would be to either apply for rectification and/or file an appeal to contend that the points raised have not been answered. If the relevant points are not answered the Appellate Court in appeal would have to set aside the matter and remand the matter to CESTAT. In case of rectification CESTAT on hearing the application will have to pass fresh orders which may have the effect of varying the order already passed or if there have been difference of opinion again would result in referring the matters back to the third member. Apart from the propriety judicial time would be involved. Procedure being hand made of justice is not meant to defeat the ends of justice. 8. On the other hand on behalf of the respondent-revenue it is submitted that considering the language of Section 35(2) of the Central Excise Act, what can be rectified is the order. Presently, as the issue is before a third member there is no order and consequential Misc. Application is premature and in these circumstances, this Court should not exercise its extraordinary jurisdiction. 9. We have given our anxious consideration to the issues involved. Considering the language of Section 35C(2) ....
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....as allowed by the tribunal on the ground that there was an error of law. In respect of that a reference was sought by the revenue. The application was dismissed against which the revenue moved the High Court. The High Court noted that the first order by the Accountant Member did not categorically state that he agreed with the conclusions of the Judicial Member and in fact by stating that as the amount involved was only Rs. 5,200/- he had no comments to add, implied that he had not considered the issue involved on merits. The Court found that in these circumstances, the tribunal was right in entertaining the application for rectification. 12. Our attention was next invited to the judgment of the Gujarat High Court in Colour Tex v. Union of India - 2008 (9) S.T.R. 440 (Guj.) = 2006 (199) E.L.T, 200 (Guj.). In that case, on difference of opinion amongst the members, the points of difference was referred to a third member. Before the third Member could decide the matter the petitioner preferred an application seeking rectification of the mistake under Section 129B(2) of the Customs Act. When the application for rectification was pending, the matter came up for hearing before the third....
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....ncurred with the view taken by the Vice-President. In these circumstances, the members held that the reference was required to be remitted only to the first part of reference. This was cited to indicate that there is power in the Tribunal even during pendency of a reference to move an application for rectification and the Tribunal has jurisdiction to entertain the same. 15. On behalf of the revenue, learned counsel had placed reliance in the case of M.M. Rubber Limited v. Union of India - 2007 (5) S.T.R. 335 (Mad.) = 2007 (210) E.L.T. 670 (Mad.). An order for assessment had been passed, the correctness of which was canvassed before the tribunal. There was difference of opinion and consequently the matter was referred to a third member. The order of the Bench was challenged by invoking the writ jurisdiction of the Madras High Court. The Learned Judge of the Madras High Court held that that there was no order passed by the third Member under reference the order made by the tribunal cannot be considered as enforceable final order. The High Court therefore declined to exercise its extra ordinary jurisdiction. 16. Both the counsel have also relied on the judgment of the Gujarat High C....
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....oints amongst members. On the points being answered by the third Member the points would stand answered in terms of the majority opinion of the judges constituting the earlier Bench and the member to whom the matter was referred though a final order may be required to be formally passed. In such event, one of the two judgments would be the decision of the Tribunal and be the operative or enforceable judgment in terms of the points answered by the third Member. An application for rectification would therefore be maintainable even when a reference is made to a Member. In our opinion, apart from the language of the provisions it would be a more constructive and purposeful method of answering the issue. Holding otherwise, and accepting the stand of the revenue would be to delay the proceedings and may also again lead to other points being referred once again. 18. We have also to consider whether a Court or tribunal has suo motu or inherent or implied power of procedural review if the said has not been specifically conferred. In our opinion, the issue is no longer res integra having been concluded by the judgment of the Supreme Court in Grindlays Bank v. Central Government Industrial T....