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TMI Blog1992 (6) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri K.K. Bhatia, raised a preliminary objection that the present Larger Bench had not been properly constituted by the Hon'ble President of Tribunal for the following reasons: "(1) that both the learned members comprising the Referring Bench have recorded their final opinion to the effect that 'Following the ratio of the Supreme Court ruling and also that of the Tribunal, we hold that ramming mass is an input used in relation to the manufacture of end-product and accordingly, eligible for Modvat Credit'. (Page 11). This considered opinion, according to the learned Jt. CDR, is final in nature since, according to him, it has been given on merits, after due consideration of the submissions made before the Bench by both sides and after taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter afresh by the Hon'ble five Member Larger Bench tantamounts to review of order No. 73-74/1992-NRB passed by the Hon'ble North Regional Bench as also those given by other Benches earlier. It would, therefore, be desirable in the interest of .examining the issue totally afresh, that the issue be considered by the Larger Bench of five members who have not dwelt on the subject earlier." On being repeatedly asked by the Bench as to whether he is challenging the legality of the constitution of the present Bench, Shri Bhatia, learned Jt. CDR submitted that he is not challenging the legality of the constitution of the present Bench and what he is challenging is its composition on the ground of propriety. 2. In reply, the learned Consultan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true that sub-section (5) of Section 129C of the Customs Act refers to difference of opinion arising amongst members of a Bench in particular case and not specifically where the Members of the Bench doubt the correctness of the earlier decision. But his power can be construed to be wide enough to enable the President to make a reference to resolve difference of opinion by constituting a Larger Bench. From this authoritative pronouncement, there is no doubt that the Hon'ble President of the Tribunal has the power to constitute a Larger Bench. This power of the President is absolute. Its (Larger Bench) composition cannot be challenged by either party on the ground of propriety before the Larger Bench so constituted. In our considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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