TMI Blog2009 (4) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... of two members (Division Bench) – Division Bench also finds that matter needs to be referred to larger bench of three members – Held that matter to be placed before the larger bench of three members – matter disposed off by the president with appropriate orders to registry. - ST/532/2006 and 32 & 88/2007 - Misc. Order No. 86/2009-SM(BR)(PB) - Dated:- 24-4-2009 - Shri Justice R.M.S. Khandeparkar, President Shri B.L. Narsimhan, Advocate Shri O.P. Aggarwal, CA Shri Hemant Bajaj, Advocate, for the Appellant Shri R. K. Verma, DR, for the Respondent [Order per: Shri Justice R.M.S. Khandeparkar] - Heard learned Advocate for the appellant and learned DR for the Department. 2. When these appeals came up for hearing before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that there are conflicting views expressed by two benches on the relevant issue and therefore the parties agree that the matter should be referred to a three Member Bench. The Division Bench passed the following order:- "After hearing both the parties, we find that there is conflicting decisions of the different Division Benches and therefore, we direct the registry to place this matter before the Honble President for constituting Three Members Bench to decide the issue". 4. Considering the order of the Division Bench of the Tribunal, matter was fixed for hearing and upon hearing the learned Advocate for the appellant and learned DR, it is found necessary to pass the following order. 5. The matters in question arise unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese members of the Appellate Tribunal who have heard the case, including those who first heard it". 7. Sub-section (6) of Section 129C of the Customs Act provides that "Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings". 8. As the law stand, there is no specific provision to meet the eventuality of the Division Bench of the Tribunal having to decide the matter wherein there are already the two different judgements taking different views on the same issue which is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for referring it to a larger Bench of the Tribunal. The President by his Order dated 4.3.1987 referred the case to a larger Bench of five members. These two orders were struck down by the High Court stating that the Bench of two members ought to have followed the earlier decision of the larger Bench of 3 Judges and a reference of the case to a still larger Bench was contrary to judicial precedent and judicial discipline". 10. The Apex Court held that 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equally divided, the case shall be referred to the President for hearing on any such point by one or more of the members of the Tribunal, and such point shall be decided according to the opinion of the majority of the members. 11. It is true that sub-section (5) refers to difference of opinion arising amongst members of a Bench doubt the correctness of an earlier decision. However, Section 129-C confers power of reference upon the President. That power should 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 the correct law and fact because of an impediment arising from an earlier decision with which they canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench or the single Member Bench. This is essentially to maintain proper judicial discipline in the administration of justice by the Tribunal. 13. Even in cases where the Division Bench is faced with a situation of having already delivered two different orders on the same issue taking by two different views by two different Benches, the Bench facing such a situation has to formulate the issue which is required to be referred to the larger Bench and thereupon ask the Registry to place the matter before the President to do the needful. 14. Considering the various decisions referred to herewith above and upon hearing the learned Advocate and learned DR, and bearing in mind the order passed by division Bench, it is necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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