Customs, Excise and Gold Tribunal - Delhi
Universal Cables Ltd. vs Collector Of Central Excise on 26 April, 1990
Equivalent citations: 1990ECR235(TRI.-DELHI), 1993(64)ELT242(TRI-DEL)
ORDER
G. Sankaran, President 1 The point of difference, as formulated by the learned Members comprising the Bench which heard the appeal, is -
"Whether the wooden drums are entitled to the concession under Rule 56C of the Central Excise Rules when cleared (by the manufacturers of electric wires and cables) with the wires/cables wound on them."
2. Though the point of difference was referred to the President in terms of Sub-Section (1) of Section 35D of the Central Excises & Salt Act, 1944, read with Sub-Section (5) of Section 129C of the Customs Act, 1962, in September 1987, the matter could not be listed for hearing so far in view of the fact that the office of the President was vacant all this time. Now that the office has been filled up, the matter was listed for hearing on 10-4-1990.
3. At the very outset, Shri M.S. Arora, the learned Departmental Representative, submitted a preliminary point that in terms of Rule 26 of the Customs, Excise & Gold (Control) Appellate (Procedure) Rules, 1982 [hereinafter referred to as the CEGAT (Procedure) Rules], "Every order of the Tribunal shall be in writing and shall be signed and dated by the Members constituting the Bench concerned". In the present instance, the two learned Members who constituted the Bench which heard the appeal were no longer in service, they having retired. Therefore, the proceedings had become infructuous and the appeal itself should be re-heard by the concerned Special Bench. In this connection, he relied upon the Tribunal's decision in Arunodaya Mills Ltd. v. Collector of Central Excise, Ahmedabad, reported in 1988 (37) E.L.T. 459 which laid down that the order of the Tribunal would be invalid unless all Members constituting the Bench were available on the date of the final order.
4. Shri N.R. Khaitan, Learned Counsel for the appellants, opposed the above contention by submitting that the Members constituting the original Bench had signed and dated their orders. In view of the difference of opinion on a point, the Third Member (the President in this case) would be the Bench and in accordance with proviso to Sub-section (5) of Section 129C of the Customs Act, the President had to decide the point of difference. However, in response to queries from the Bench, the Counsel agreed that it would only be proper that the procedure provided for in the main clause should be followed by the President after recording his decision on the point of difference, that is to say, he should transmit the matter to the concerned Special Bench since, in the present case, the original Bench was not available any longer. The concerned Special Bench would then dispose of the appeal in accordance with the opinion of the majority of the Members who initially heard the appeal, and the decision of the President. The Counsel also submitted that the law did not require that the very same Members who initially heard the appeal must dispose of the appeal in the light of the majority opinion. What the law required was that the Bench should dispose of the appeal in accordance with the opinion of the majority of the Members who initially heard the appeal and the opinion of the Third Member (the decision of the President in the present case) to whom the point of difference was referred. At this stage, the successor Bench had no occasion to adjudicate on any point or points. In fact, as laid down by the Assam High Court in Senairam Dungarmall v. C.I.T. Assam AIR 1955 Assam 201, the assessee was not entitled to a hearing at this final stage. The Bench might, no doubt, hear on any new points. The assessee had on right for any hearing on the point of difference or on the points on which he had already been heard, at the final stage. All that the Bench was required to do was to ascertain the majority opinion and give the final verdict disposing of the appeal in the light of the majority opinion. This would not necessitate the presence in the Bench of the two Members who originally heard the appeal. In a case such as the present one, any contrary view would result in considerable hardship to parties. The view canvassed by the Counsel was the only pragmatic and practicable course to follow. In short, the learned Counsel's contention was that the principle of audi alteram partem had no application at the final stage because there was no question of hearing on, and going into, the merits of the case all over again. Therefore, the normal principle that the authority who heard the appellant should himself decide the matter had no application in the circumstances of the present case.
5. Shri R.K. Jain, Secretary, Cegat Bar Association, who happened to be present in the Court, requested for permission to make submissions on the issue since the outcome of the present proceedings would have implication for other pending matters as well. He was permitted to make submissions. Shri Jain submitted that judicial notice must be taken of the fact of retirement of the two Members constituting the original Bench. He referred to Section 129C(5) of the Customs Act, which spoke of the opinion of the "majority of the Members of the Appellate Tribunal who have heard the case including those who first heard it". This meant that the final disposal of the appeal must be by the same two Members who originally heard the appeal. Then only the requirement of disposal of the appeal by the original Bench in the light of the opinion of the majority of the Members who originally heard the appeal and of the Third Member would be satisfied. In this connection, he relied on para 92 of the Tribunal's order in the case of Jayashree Insulators Ltd. v. Collector of Central Excise, Calcutta, reported in 1987 (28) E.L.T. 279 (Cegat) wherein, the President, after deciding on the point of difference, sent the case back to the "original" Bench for orders in the light of his decision. The submission being that the "original" Bench meant a Bench consisting of the very same Members who had heard the appeal in the first instance. He also referred to the provisions of Sub-section (1) of Section 129C of the Customs Act, and submitted that the composition of the Bench which would finally dispose of the appeal was material and relevant also because, if it was not comprised of the Member who initially heard the appeal, it would amount to the successor Bench passing an order disposing of the appeal though they had not heard the parties. In this connection, he also referred to Rules 31 and 31 A of the Cegat (Procedure) Rules, 1982 which were specific for the purposes specified in them and could not be called in aid to resolve the present situation. Shri Jain also referred to the Tribunal's decision in the case of Basti Sugar Mills -1990 (47) E.L.T. 404 (Tri.)- In that case, though the Bench had pronounced its order allowing the appeal in the Open Court, the Bench could not prepare the written order for communication to the parties owing to the non-availability of one of the Members. In the circumstances, the matter had to be re-heard by another Bench which held that the brief order recorded in the order sheet by the first Bench was not an order in terms of Section 35C(1) of the Central Excises & Salt Act. The present case, if anything, was worse than the cases of Basti Sugar Mills - 1990 (47) E.L.T, 404 (Tribunal) inasmuch as it was in the nature of a part-heard case.
6. Adverting to the submissions made by the learned Secretary of the Cegat Bar Association, the learned Counsel Shri Khaitan referred to the principle enunciated by the Supreme Court in the case of Surendra Singh and Ors. v. State of Uttar Pradesh - AIR 1954 SC 194 and cited in paras 11 and 12 of the Tribunal's decision in the case of Arunodaya Mills (supra) and contended that it would not have application to the present proceedings. In accordance with the Civil Procedure Code, every judgment was required to be pronounced in Open Court. Until it was pronounced, it was not a judgment. If one of the Judges constituting the Bench which heard a matter was not available at the time of delivery of the final judgment, it would not be a valid judgment because the judgment would take effect only on its pronouncement in Court. Such was not the case with the Tribunal. The Tribunal's decision in the case of Arunodaya Mills - 1988 (37) E.L.T. 459 (Tribunal) had no application because, in that case, the order of reference to the President had not been signed by one of the Members, he having already retired from service. That was not the case in the present instance where the two Members had recorded their opinions. On the reference by Shri R.K. Jain to the Tribunal's decision in the case of Basti Sugar Mills - 1989 (47) E.L.T. 404 (Tribunal) the Learned Counsel submitted that the present case was distinguishable inasmuch as there was no question of any oral order here. The opinions of the two Members of the original Bench were on record duly signed and dated.
7. I have carefully considered the submissions. The two Learned Members constituting the Special Bench which first heard the appeal, as is clear from the record, had, on consideration of the submissions before them, recorded their respective opinions on the issues posed before them. It so happened that on one of the issues they could not agree. Hence, they jointly formulated the point of difference in accordance with Section 129C(5) of the Customs Act, 1962 as made applicable to appeals under the Central Excises & Salt Act, by Section 35D(1) of the latter Act. This provision reads as follows :-
129C(5) - "If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the President 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:
Provided that where the Members of a Special Bench are equally divided, the point or points on which they differ shall be decided by the President." (emphasis supplied) It may be seen that in Special Bench cases, the point or points of difference shall be decided by the President while in non-Special Bench cases, the point or points of difference shall be decided according to the majority opinion of the Members who first heard the appeal and the opinion of the third Member or Members to whom the matter is referred. However, it needs no argument to say that the procedure to be followed after the third Member or Members record their opinion or the President renders his decision has to be the same. The practice followed in the Tribunal has been that the Third Member or Members of the reference Bench constituted by the President, after hearing the parties, record(s) his or their opinion on the point or points of difference, and transmit the records to the Bench which made the reference. The latter Bench thereupon proceeds to pass the final order disposing of the appeal in the light of the majority opinion on the point or points of difference. In matters relating to Special Bench cases also this was the practice which was followed. This also follows from the purport of the words used in the proviso. No doubt, the duty is cast on the President to decide the point or points of difference but that alone would not result in final disposal of the appeal. That would fall within the domain of the concerned Special Bench which has to pass the order of final disposal of the appeal in the light of the President's decision on the point or points of difference.
8. In the present case, the two Members constituting the referring Bench are no longer in service, they having retired. The question then would be whether, as contended by the learned D.R. and the learned Secretary of the Cegat Bar Association, the present proceedings have become infructuous and the proper course is for the concerned Special Bench to re-hear the appeal or, as the learned Counsel for the appellants contends, it would be proper for the concerned Special Bench to dispose of the appeal in the light of the President's decision on the point of difference, after the President hears the parties and records his decision on the point of difference.
9. Looking at the words used in the main clause of Section 129C(5) of the Customs Act, it is clear that it is a mandatory requirement that the point or points of difference shall be decided according to the opinion of the majority of the Members of the Tribunal who have heard the case including those who first heard it. The Bench, at that stage, has no discretion in the matter; it shall decide the point or points of difference according to the majority opinion. Taking the present case as an instance, the Member (Technical) recorded his opinion that the wooden drums on which cables were wound were not entitled to the benefit of Central Excise Rule 56C, while the Member (Judicial) recorded his opinion that they were entitled to the benefit. This is the only point of difference between the two Members. It is not a case of a tentative draft drawn up by the Member (Technical) and another tentative draft drawn up by Member (Judicial). The former recorded his clear opinion and signed it and the latter, after perusing the same, recorded his opinion equally clearly and signed it. This resulted in a difference of opinion on one of the points arising for determination in the appeal. Thereafter, the two Members jointly formulated the point of difference between their opinions. There was thus no question of the two Members having expressed, through their respective opinions, their tentative views which were as liable to change as not after mutual discussion. If that was the case, they could not, and would not, have jointly formulated the point of difference and transmitted the records to the President in terms of Section 129C(5). Till the stage of joint formulation of the point of difference and transmission of the records to the President, the two Members could have changed their opinions and, may be, even passed a mutually agreed order disposing of the appeal. But that did not happen. They adhered to their respective opinions, jointly formulated the point of difference and transmitted the records to the President. Assuming that the same two Members are now available for the final disposal of the appeal also, there would be no occasion for them to go back on, or change, their respective original opinions except, of course, to the extent that on the point of difference the final disposal would have to be in the light of the President's decision.
10. In the above view of the matter, it appears to me that the reliance placed by the learned D.R. on the Tribunal's decision in Arunodaya Mills v. Collector of Central Excise - 1988 (37) E.L.T. 459 is of no avail. In that case, one of the Members comprising the original Bench had recorded his opinion but before the other Member recorded his opinion, he had retired from service. The second Member not only recorded his separate opinion but also formulated the point of difference (arising out of the two opinions) to which the first Member was evidently not a party because he had already retired by then. It was in view of this factual situation that the three Member Bench of the Tribunal to which the matter was referred by the Senior Vice-President, functioning as President, came to the conclusion that there was no valid order of the original Bench in pursuance of which action could have been taken Under Section 129C(5) of the Customs Act. In coming to this conclusion, they relied upon the Supreme Court's judgment in Surendra Singh v. State of U.P - AIR 1954 SC 194 (paras 11, 12 and 13 of the Supreme Court judgment were noticed). The purport of these paras is that the Judge who "delivers" the judgment or causes it to be delivered by a Brother Judge must be in existence as a Member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in the Court but he must be in existence as a Member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and is in a position to change his mind but makes no steps to arrest delivery.
11. The above observations are, it should be noted, in the context of the legal requirement that all judgments of Courts should be pronounced in the Open Court. Till a judgment duly signed by all the judges comprising the Bench is actually pronounced in the Court, it does not become a judgment of the Court. Till that moment, it remains a draft, an expression of opinion, which is liable to change should any Member of the Bench consider it necessary.
12. It has to be noted, even at the cost of repetition, that, in the present case, the question of the original two Members (were they in service still) having an opportunity to change their opinions, leave alone change them, does not arise. For that stage had already been left behind when they jointly formulated the point of difference and referred it to the President and, copies of the opinions of the two Members and the point of difference were duly communicated to the parties as a necessary step preparatory to hearing on the point of difference. The considerations spelt out by the Supreme Court, therefore, are not present in the instant case.
13. The legal requirement in respect of orders of the Tribunal is contained in Rule 26 of the Cegat (Procedure) Rules, 1982, which reads -
"Every order of the Tribunal shall be in writing and shall be signed and dated by the Members constituting the Bench concerned".
There is no requirement that the orders must be pronounced in the Court though it is true that there is no bar either. Sub-section (3) of Section 129 B of the Customs Act, 1962 and Sub-section (3) of Section 35C of the Central Excises & Salt Act, 1944 require that the Tribunal shall send a copy of every order passed under the respective sections to the Collector and the other party to the appeal. In other words, the order could be communicated by the normal methods of communication including registered post. (See also Section 153 of the Customs Act and Section 37C of the Central Excises & Salt Act).
14. In the context of the issue arising for determination in the present proceedings, I find that the judgment of a Full Bench of the Madhya Pradesh High Court in Ladhuram Rameshivardayal v. Krishi Upaj Mandi Samiti, Shivpuri and Ors. reported in AIR 1978 M.P. 10 (not cited before me) is very apposite. In that case, a writ petition was heard by a Division Bench consisting of Raina, J. and Bhachawat, J. They differed as to the disposal of the petition. Accordingly, they directed the case to be placed before the Chief Justice for nominating a third Judge for hearing the difference in terms of Rule 11 of Chapter I of the High Court Rules. Lodha, J. who was nominated as the third Judge recorded his opinion, whereafter the matter was placed before the Chief Justice who constituted a Division Bench consisting of Vyas, J. and Bhachawat, J. because, in the meanwhile, Raina, J. had taken over as Chairman of the Industrial Court, Indore and was not available to sit in the High Court. The question arose whether that Bench, constituted as it was, and which had not heard the matter on merits at any stage, could decide the case in accordance with the opinion of the majority. A Full Bench of the High Court went inter alia into this question. At this stage it is useful to note the phraseology employed in Rule 11 of Chapter 1 of the High Court Rules and the other relevant provision discussed in the judgment namely, Clause 26 of the Letters Patent. Rule 11 read as follows :
"11. When in any appeal or civil matter heard by a Bench of two Judges, the Judges composing the Bench differ on a point of law and state the point on which they differ, the proceeding shall be placed before the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter."
Clause 26 of the Letters Patent read as follows :
"26. Single Judges and Division Courts. - And we do hereby declare that, any function which is hereby directed to be performed by the High Court of Judicature at Nagpur in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court, thereof appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but if the Judges be equally divided they shall state the point on which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
15. The similarity in the phraseology employed (to the extent relevant) in Section 129C(5) of the Customs Act is readily apparent.
16. In dealing with the question, the High Court observed that the three opinions have to be placed side by side and it has to be seen what the opinion of the majority of Judges is, that is to say, out of the three opinions, which is the majority opinion and which is the minority opinion. The point must be decided according to the majority opinion. The observations in paragraph 8 of the judgment are very relevant for the present purpose and are reproduced below :-
"8. It is undoubted position that the point has to be decided at this stage (i.e. after the third Judge has recorded his opinion) as a matter of formal expression of the decision. There is no question of fresh application of the mind on the merits of the point, on which the opinion of the third Judge has been recorded. If two Judges had first heard the matter, the point will be decided by a Division Bench of two Judges after receipt of the opinion of the third Judge. It is true that the word 'decided' ordinarily envisages an application of the mind but such application of the mind must be restricted to two things only :
(i) to find out from the three opinions what the majority opinion is and to 'decide' the point according to the majority opinion; and (ii) to decide what relief flows from such decision, which relief the Division Bench shall be bound to give to the parties."
The Court also observed in para 9 that after the receipt of the opinion of the third Judge, it is the Division Bench which 'decides' the point, although it cannot decide the point by applying its mind de novo on the merits but is bound to decide the point according to the majority opinion of the Judges. In arriving at its conclusion, the Bench took support from the view expressed in the judgment of a Full Bench of the Lahore High Court in Royal Calcutta Turf Club v. Kishan Chand - AIR 1943 Lah. 84, in which it was, inter alia, observed that if in the interval between reference of the point of difference to a third Judge and the time the third Judge gives his opinion, a change has occurred in the constitution of the Division Bench in question, it would be necessary for the Chief Justice to constitute another Division Bench as the successor of the referring Bench. The question whether after the opinion of the third Judge is recorded, it is necessary that the case must be placed before the same Bench which first heard it, has been dealt with in para 18 of the report. The Court noted that there was no such restriction either in Rule 11, Chapter 1 of the High Court Rules, or in Clause 26 of the Letters Patent. But, as a matter of propriety, the opinion of the third Judge should be laid before the same Bench which first heard the matter. However, if that Bench is not available or if it is not convenient for that Bench to sit (the High Court referred to the position that Judges sitting in a Division Bench at one of the seats of the High Court may be sitting at another seat when the matter is returned by the third Judge), it is not necessary that the matter should go before the same Bench for deciding the point according to the opinion of the majority. After the opinion of the third Judge is returned, it is more or less a matter of formality to pronounce the decision of the Court which has got to be according to the opinion of the majority, consisting of the third Judge and the Judges of the Division Bench which first heard the matter. Accordingly, the question was answered in the following terms :
"20. (1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to third Judge nominated by the Chief Justice under R. 11 of Chapter I of the High Court Rules, and the third Judge, after formulating the point or points of difference of the Judges of the Division Bench, returns his opinion under Clause 26 of the Letters Patent, any other Division Bench of which one or both of the Judges were not members of the Division Bench which originally heard the case, can render the decision in accordance with the majority of the opinion of the Judges of the referring Bench and the referee Bench."
Further it was observed in para 20(2) as follows :-
"...After the third Judge has recorded his opinion; the case must be laid before the Division Bench for deciding the point or points which were referred to the third Judge according to the method provided by Clause 26 of the Letters Patent and it is at this stage that a Division Bench will finally decide the case before it. It is not the requirement of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can constitute another Division Bench to decide the case according to the method provided by Clause 26 of the Letters Patent."
17. The principles emerging from the above judgment apply with equal force to proceedings before the Tribunal in similar circumstances. Ordinarily, it would not be necessary to dilate on the point any further. However, for the sake of completeness, I shall examine the remaining submissions made before me. Now, let me examine whether it would be proper for me to hear the parties, record my opinion on the point of difference and transmit the case records to the concerned Special Bench. The learned D.R. and the learned Secretary of the Bar Association have vehemently contended that it would not be proper for the reason that the original two Members are no longer available to dispose of the appeal in the light of the majority opinion on the point of difference. The Bench as constituted now or on a later date would comprise of Members who had not heard the parties and it would be a negation of the principles of natural justice for them to pass a final order disposing of the appeal in the light of the majority opinion on the point of difference. The learned Counsel for the appellants has equally vehemently contended that the successor Bench has no jurisdiction to hear the points already heard and its function is only to pass a final order disposing of the appeal in the light of the majority opinion on the point of difference. In accordance with the judgment of the Assam High Court in Senairam Dungarmall v. Commissioner of Income Tax - AIR 1955 Assam 201, the assessee is not entitled to hearing at the final stage. There is also no requirement of notice to parties nor hearing at that stage. This position flows also from the Full Bench judgment of the M.P. High Court (supra). It follows, therefore, that parties, at that stage, are not entitled to canvas before the Tribunal regarding the correctness or otherwise of the majority opinion. Therefore, the principle of audi alterem partem has no application to a situation of this type and the principle that the authority which heard the matter must itself decide also has no application.
18. As already noted, the requirement of Section 129C(5) of the Customs Act is that the point or points of difference shall be decided (it is a mandatory prescription) according to the opinion of the majority of the Members of the Tribunal who have heard the case including those who first heard it. (In Special Bench cases, the point of difference shall be decided by the President). In other words, the separate opinions recorded by the two Members who originally heard the appeal, the point of difference arising therefrom, and the Third Member's opinion thereon (the President's decision in Special Bench cases) should be looked into and the point or points of difference shall be decided according to the majority opinion, i.e., the opinion of the first two Members and the Third Member or, as the case may be, the President's decision. This requires no de novo determination in the sense of hearing parties again with the attendant possibility, if not certainty, of the Bench coming to a conclusion different from that indicated by the separate opinions of the two Members who initially heard the appeal and the opinion recorded by the Third Member on the point of difference between the said two Members. If de novo determination were required, evidently, notice of hearing would have been necessary but, as earlier noted, the Assam High Court has clearly laid down that at the final stage there is no question of notice or hearing. If there is no notice or hearing, the question of the successor Bench hearing parties would not arise. Its function would be to merely ascertain the majority opinion on the point of difference and dispose of the appeal in that light.
19. The Tribunal's decision in the case of Basti Sugar Mills - 1989 (47) E.L.T. 404 (Tri.) referred to by the Secretary of the Bar Association is, in my opinion, not relevant. In that case, after hearing the parties, the Bench pronounced an oral order allowing the appeal and made a note on the order sheet allowing the appeal and that order would follow. But the detailed reasoned order could not be prepared and issued by the Bench because one of the Members reverted to his parent service and ceased to be a Member of the Tribunal. The appeal had, therefore, to be re-heard by another Bench. On an objection taken by one of the parties, the Tribunal went at length into the question whether the order allowing the appeal as recorded on the order sheet could be said to be an order in terms of Section 35C(1) of the Central Excises & Salt Act. Very appropriately, they came to the conclusion that since a reasoned order discussing the contentions of the parties had not been prepared and communicated to the parties, it could not be said that the cryptic one line order on the order sheet would be the order envisaged in terms of Section 35C(1). In the present instance, as already noted, the two Members did clearly record their respective opinions and jointly formulate the point of difference. The facts and circumstances being different, the decision cited has no application.
20. Nor is the present case a "part-heard" one as contended by the learned Secretary of the Bar Association. A "part-heard" case would be one where the Bench had not fully heard arguments. Evidently, another Bench will have to hear the matter afresh if the Bench which "part-heard" the case cannot conclude the hearing for whatever reason. Such is not the case here. The Bench had fully heard the case.
21. Rule 40 of the Income Tax (Appellate Tribunal) Rules, 1963, which came up for consideration in the case of Namita Mukherjee v. Income Tax Appellate Tribunal and Ors. - (1989) 176 ITR 73, (not cited before me), reads as follows :-
Same Bench to hear the application.
"40. The Bench which heard the appeal giving rise to the application shall hear it unless the President directs otherwise."
In that case, the appeal before the Tribunal had been disposed of by a Bench consisting of a Member (Judicial) and a Member (Accountant) as required under the law. The assessee had thereafter filed an application for reopening of the matter. By the time the application came up for hearing, one of the Members of the Bench who heard the appeal had retired. The remaining Member, along with another Member, heard the application and disposed it of by an order. The original order on the appeal as well as the order on the subsequent application were taken up in writ proceedings before the Calcutta High Court. The Court found that -
"...under Rule 40 of the Income Tax (Appellate Tribunal) Rules and Orders relating to the Appellate Tribunal, the Bench, which heard the appeal, shall hear it unless the President directs otherwise. Looking to the rules and regard being had to the background of the case, it is found that one of the Members of the Bench, who heard the appeal, retired in the meantime, and the remaining Member along with another Member heard the matter under reference for disposing of the subsequent application of the petitioner. This Court finds by a harmonious construction of the rule itself that the Bench should be referred to which was competent to hear the reference. After superannuation of one of the Members, if the Bench which was competent to hear the appeal has disposed of the revision application, the petitioner cannot urge that there is prejudice caused to the petitioner and the writ court having discretionary power should interfere with the matter."
22. The corresponding provision in the Cegat (Procedure) Rules, 1982, is Rule 31, which reads as follows :-
"31. Same Bench to hear the reference applications. - The same Bench which heard the appeal giving rise to the application for reference to the High Court or Supreme Court shall hear such application unless the President directs otherwise."
Though the words used are "the same Bench" in the I.T.A.T. Rules also, the Court did not find any fault with the order passed on the application though the composition of the Bench was not the same as that of the Bench which heard the appeal. If it were necessary for the same Bench which heard the appeal to hear the reference application also, it may often happen that the reference application cannot be heard for the simple reason that one or the other of the Members may no longer be in service in the Tribunal.
23. The same situation could prevail also in respect of applications for rectification of mistakes. Rule 31A of the Cegat (Procedure) Rules refers. It reads as follows :-
"31A. Same Bench to hear applications for rectification of mistakes. - An application for rectification of a mistake apparent from the record, Under Sub-section (2) of Section 129B of the Customs Act, or Sub-section (2) of Section 35C of the Central Excises and Salt Act, or Sub-section (2) of Section 81A of the Gold (Control) Act, shall be heard by a Bench consisting of the Members who heard the appeal giving rise to the application, unless the President directs otherwise."
This rule requires that the application shall be heard by a Bench consisting of the Members who heard the appeal giving rise to the application unless the President directs otherwise. Evidently, the provision for the President constituting a Bench not inevitably consisting of the Members who heard the appeal giving rise to the application has been made because of the real possibility that one or both of the Members who heard the appeal may no longer be available in the Tribunal to hear the application.
24. A similar provision exists on the action to be taken on receipt of the judgment of the High Court or the Supreme Court to which a reference is made by the Tribunal. Rule 37 refers:
"37. Receipt of judgment of High Court or Supreme Court. - Where a copy of the judgment of the High Court or the Supreme Court is received by the Tribunal, it shall be sent to the Bench referred to in Rule 31 or any other Bench as directed by the President for such orders as may be necessary."
Here also there is a provision for constitution by the President of a Bench not inevitably consisting of the Members who heard the reference application in the first instance. The relevant provision of the Central Excises & Salt Act is Section 35K. The requirement in the section is that the Appellate Tribunal shall pass such orders as are necessary to dispose of the case in conformity with such judgment. It is only proper that if the Members of the Bench who heard the reference application are available in the Tribunal, the judgment of the High Court or the Supreme Court is considered by that Bench and appropriate orders are passed in conformity with such judgment. However, if one or both of the Members of that Bench are not available, the matter surely cannot be allowed to rest. It has to be disposed of and hence the provision in the rules enabling the President to constitute another Bench for disposing of the matter in the light of the Court's Judgment.
25. The situation in the present case is analogous to, if not identical with, those referred to in the preceding paragraphs. It is necessary that after the point of difference is decided by the President in the case of Special Bench matters or the opinion thereon is rendered by the Third Member in Regional Bench matters, the appeal is disposed of in the light of the opinions already recorded by the Members of the Bench who originally heard the appeal and the President's decision or the Third Member's opinion on the point of difference. It would, of course, be only proper that if the two Members who initially heard the appeal are available in the Tribunal, the final disposal of the appeal should also be by them. If, however, one or both of them are not available in the Tribunal, the matter cannot be allowed to rest there without any final disposal of the appeal. It could never have been the intention of the legislature to bring about a standstill in such circumstances which, in the normal course of events, is bound to arise from time to time. We have already noted that in accordance with the Assam High Court's judgment referred to earlier as also the principle emerging from the Full Bench judgment of the M.P. High Court that the parties are not entitled to any notice or hearing at the stage. In order words, there is no de novo determination of any of the points arising in the appeal. The points which arose in the appeal were considered by the two Members after hearing the parties and they recorded their opinion on the agreed points and separate opinions on the point on which they differed. This point has now to be disposed of in the light of the President's decision thereon. In other words, at the final stage, there is no de novo determination of any points in the sense of hearing parties and applying mind thereon. The successor Bench has only to ascertain from the recorded opinions the opinion on the agreed points and the majority opinion or the President's decision on the point of difference and pass an order disposing of the appeal.
26. In the above view of the matter, it does not appear to me that there is any substance in the preliminary point raised by the learned Departmental Representative.
27. I must also mention here that there is no specific provision for rehearing of the appeal either in the Act or in the Rules. Normally, re-hearing of a case would be necessary only if after the original hearing, the Bench does not render a decision. This situation could come about due to man reasons as, for example, one of the Members retiring from service or reverting to his parent service. Another situation could be when an application is moved by one or the other parties to the appeal requesting for reopening of the hearing in the light of certain developments or case law which were not, or could not be, brought to the notice of the Bench which originally heard the appeal. There may be other situations too. But in a situation of the type we are faced with in the present case, the matter has been fully heard and the Members who heard the appeal have recorded their opinions. Their opinions on the points arising in the appeal are not a matter of conjecture. They are a matter of record. The opinion of the Third Member or the decision of President, as the case may be, would also not be a matter of conjecture. What would remain then is that the Third Member's opinion, or the President's decision, after it is rendered, should go to the Bench which, in law, is competent to hear the appeal. As no hearing is required at this stage and, as noted earlier, there is no scope for any de novo determination of any of the points arising in the appeal, the successor Bench which, in law, is competent to hear the appeal, should dispose of the appeal in the light of the opinions or decision in record. This will also not prejudice the parties to the appeal.
28. The office of the President, Cegat was vacant for nearly 2 years 6 months and, in the interregnum, a number of Special Bench cases involving difference of opinion have arisen. If all the cases like the present one are to be re-heard by the Tribunal, it would certainly cause undue hardship to the litigants from far-flung areas and would further delay the course of justice. Surely, Courts, and Tribunals, should strive to interpret law in such a way as to make it work smoothly. That is the law declared by Courts in several pronouncements. Having regard to the analysis of the legal position contained in the preceding paragraphs, I am of the opinion that the course suggested by the learned D.R. is neither legally required nor pragmatically justified.
29. In the light of the foregoing discussion, I reject the preliminary submission made by the learned Departmental Representative. The matter will now come up on 5-7-1990 at 10.30 A.M. for hearing on the point of difference.