TMI Blog2018 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... s not empowered to constitute a Larger Bench. The learned AR further states that from a plain reading of Section 129 (5), it is clear that the power of President can be delegated to the Vice President under the said Section, a provision which is missing in Section129C (5) of the Customs Act. Accordingly, it is further submitted that a Larger Bench cannot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or refer the case for hearing on such point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided, according to the opinion of the majority of the members of the Appellate Tribunal, who have heard the case, including those who first heard it . 4. Having considered the rival contention, we find that the 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is by way of being a preliminary objection to hearing by this bench of the matter referred vide order no. M/86321/17/STB dated 14 th October 2016 of a division bench of this Tribunal to the President for constitution of a Larger Bench to decide on two specific issues raised therein we are, regretfully, unable to concur with the finding that the objection is frivolous and liable to be rejected. We are creatures of the statute and the sanctity of our decisions, and of the institution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with section 129C(2) and section 129C(4) of Customs Act, 1962. It is also not in doubt that the Central Government has assigned certain specified authority to the specially nominated Member (Judicial) by its order no. A-120126/3/218-Ad.IC (CESTAT) dated 22 nd May 2018 and the further order no. A-120126/3/218-Ad.IC (CESTAT) Pt.I dated 30 th May 2018 issued under the authority vested in the President of India. The moot issue, however, is whether these conferments transform the nominated 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of a division bench, whether by regular posting of Members or by Members deputed on tour under administrative powers, at a location creates jurisdiction mandated by section 129C(2) and 129C(4) of Customs Act, 1962. Moreover, the orders issued by the incumbent in office of President, prior to demitting of office, for distribution of work at Delhi and Mumbai continues to subsist. Administrative reassignment of subject matters empowered by the order dated 22 nd May 2018 is not in conflict 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 Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve orders were to suffice, there was no reason for the Hon'ble High Court of Delhi, in Simplex Infrastructures Ltd v. Union of India [order dated 6 th May 2016 in WP (C) 4017/2016], and for the Hon'ble Supreme Court, in re H R Johnson (India) Ltd, not to sanctify an interim administrative measure to suffice for the purposes of chapter XV of Customs Act, 1962 instead of monitoring the steps taken for filling that statutorily created post. Obviously, the law requires a President to discharge the functions of the President and could not be delegated by the Central Government. 18. From the above, we clearly deduce that the statutory instruments of the Central Government cannot supplant the legal mandate that devolves express powers on the President under section 129 and section 129C of Customs Act, 1962. This controversy should not be allowed to mar the findings of any Larger Bench constituted to consider the points referred by the division bench. It is, by far, better to await the appointment of President and thus erase any trace, however remote, of any controversy in the provenance of the Larger Bench. 19. It is adverted that the President had approved of a Larger Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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