TMI Blog2000 (7) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... is a divergence of opinion between two Members. Therefore the matter is placed before the President for constituting Larger Bench to look into the correctness of the judgments". 3.We have heard Shri M.C. Sharma, ld. CDR for the Revenue and Shri V. Laxmikumaran, ld. Advocate who addressed the Bench as an intervener to assist the Bench in the matter. 4.Ld. CDR explained the facts of the case leading to the present reference and stated that the Respondents herein, viz., M/s. Asia Brown Boveri Ltd. had been issued two Show Cause Notices by the Department alleging that the assessee had received certain inputs from S.S.I units and had subsequently cleared the same as such under Rule 57F(1)(ii) of the Central Excise Rules, 1944 after paying duty at the concessional rate. Department alleged that this was not in consonance with the provisions of Rule 57F(1)(ii). In the Order-in-Original, the Asstt. Commissioner held that the assessee was required to pay the applicable rate of duty on the date of clearance of the inputs under Rule 57F(1)(ii). When the matter was heard in Appeal by Commissioner (Appeals), the Commissioner (Appeals), placing reliance on the Tribunal decisions in C.C.E. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no bar to a Single Member Bench doubting the correctness of an earlier decision of the Tribunal even if that decision was rendered by a Bench consisting of a larger number of Members than the Bench doubting the correctness of the earlier decision. In this connection, he relied on the observations of the Apex Court in Union of India v. Paras Laminates (P) Ltd. reported in 1990 (49) E.L.T. 322 at Paras 9 to 12 thereof. He submitted that in terms of Section 129C(5) of the Customs Act, 1962, where the Members of a Bench of the Tribunal differed in opinion on a point the point, it is to be decided according to the opinion of the majority. If there was no majority of the Members and if the Members were equally divided, they should state the point or points on which they differed and make a reference to the Hon'ble President who may either hear the point or points himself or refer the case for hearing of such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it. Ld. JDR submitted that under Section 129C(5) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble 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 the impediment of an earlier decision with which they cannot honestly agree. The Apex Court had stated: "In such cases, it is necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to a Larger Bench. That is the power which is implied in the express grant authorising the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions". 7.Respectfully following the ratio of the aforesaid judgment we find no infirmity in the Single Member Bench in Chandigarh Bottling case not following the three Member Bench decision in American Auto Service case, though we also at the same time fully reiterate and emphasise the observation of the Apex Court in Para 9 of the Paras Laminates case stating that a two Member Bench must not lightly disregard the decision of another Bench of the Tribunal on an identical question particularly when the earlier decision is rendered by a Larger Bench in the interest of conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the goods were being removed as manufactured in the said factory by virtue of the deeming provision. It was held that duty would be required to be collected in respect of the said goods in terms of the provisions of the rules at the rate that would apply to the goods when actually manufactured or produced in the factory. The duty to be paid may in certain cases be more than the credit that was taken when the goods were brought into the factory but it cannot be less than the amount of credit that was taken by virtue of the proviso to Rule 57 F(1). In the facts of the case, the demand for enhanced duty and differencial was held to be maintainable in law. 11.1In the Tribunal decision in Collector of Central Excise v. American Auto Services [1996 (81) E.L.T. 71] decided by a Three Member Bench of the Tribunal, it was held by majority that the term "appropriately" cannot be read to mean "effective duty of excise" as prevalent at the time of manufacture and removal of the goods at the first instance by the original manufacturer of the goods. It was observed "As Rule 57F(1)(ii) is placing a burden on the user to make the payment of duty, therefore the legal fiction has been created t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where those conditions are not complied with, the duty required to be recovered is on the same lines as set out in Rule 57F(1)(ii). He cited the example of Rule 173L under which refund is allowed in respect of goods, which after clearance on payment of duty are received back for reconditioning and reprocessing and the goods after reconditioning have to suffer duty as if the same are manufactured in the factory even though the process carried out may not be strictly according to the definition of the 'manufacture' given under Section 2(f). Ld. Single Member had also observed that the position in regard to goods which were brought in as inputs and in respect of which Modvat credit is taken is somewhat analogous to the warehoused goods. Since the wording of the Rule was very clear as to the quantum if duty to be charged and once the language of the statute was clear, the same has to be given full effect not withstanding any anomalies that may ensue therefrom. If the framers of the statute had intended to recover only duty equivalent to the Modvat credit taken on the inputs on their clearances from the factory, then the wording of the Rule would have been that the goods could be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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