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2021 (3) TMI 775 - CESTAT NEW DELHIReference the matter to the larger bench of 3 members by the Single Member Bench - learned Member hearing this appeal found it difficult to accept the view taken by the Division Benches of the Tribunal - Levy of penalty u/s 112(a) of the Customs Act, 1962 - exporter who has mis-declared the goods is located in Dubai, UAE - period 2012-13 - offence committed outside India - whether during the relevant period i.e. 2012-13, the Customs Act was applicable only to the whole of India or whether it was applicable also beyond the territorial jurisdiction of India, in which case penalty could be imposed on companies incorporated abroad? HELD THAT:- It is clear from various Constitution Bench judgments of the Supreme Court [2002 (9) TMI 799 - SUPREME COURT] that judicial discipline and propriety demands that a Bench of two learned Judges should follow the decision of a Bench of three learned Judges, but if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for the Bench of two learned Judges to adopt is to refer the matter before it to a Bench of three learned Judges setting out the reasons why it could not agree with the judgment rendered by three Hon’ble Judges. It is only when the Bench of three learned judges also comes to a conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, that a reference to a Bench of five learned Judges would be justified. The learned Member could not have ignored the binding decision of the Division Bench of the Tribunal in SHAFEEK P.K., KERALA VERSUS CC, COCHIN [2015 (9) TMI 1257 - CESTAT BANGALORE]. In case the learned Member was not inclined to accept the view taken by the Division Bench that the Customs Act was applicable only within the territory of India and not beyond the territory of India prior to 29.30.2018, judicial discipline and propriety required the learned Member to make a request for the matter to be placed before a Division Bench of the Tribunal, which could then have examined whether the Division Bench decision of the Tribunal in Shafeek P.K. required any reconsideration, but that was not done. Even if there was only a decision of a learned Member of the Tribunal, then too judicial discipline and propriety required the learned Member to make a reference to a Division Bench after framing the issue(s) for determination by the Division Bench. What should have been the constitution of the Bench for deciding the reference made by the learned Member? - HELD THAT:- The learned Member hearing this appeal could have made an observation for placing the matter before a Bench of two Members of the Tribunal. Even if the learned Member hearing this appeal found it difficult to accept the view taken by the Division Benches of the Tribunal, then too the matter could have been placed only before two Members of the Tribunal, who could then have examined whether the matter require re-consideration by a Larger Bench of three Members of the Tribunal. Thus, it was not necessary for the learned Member hearing this appeal to make a reference to a Larger Bench for the reason that the Division Benches of the Tribunal have already expressed views on the issue that has been referred - The papers may be placed before the learned Member to decide the Appeal on merits.
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