Indian Kanoon - Search engine for Indian Law

5. In support of his argument, learned Senior Counsel for the respondents submits and relied on the decision made by Hon'ble Division Bench of this Court dated Patna High Court MA No.376 of 2019 dt.18-03-2026 18.07.2019 in Tax Case No.2 of 2010 (Prabhat Jarda Factory India Vs. Commissioner of Central Excise Patna in which it has been acknowledged that provision of Section 35H of the Central Excise Act, 1944 (1 of 1944) stands deleted. The Hon'ble Division Bench observed that the aforesaid issue came up for consideration before the larger Bench of the Tribunal in the case of Larsen & Toubro Ltd. Vs. Commissioner of Income Tax, Chennai reported in 2006 TSTR 321. The Division Bench restrained itself to proceed further granting liberty to the then petitioner to take recourse to such remedy that may be available to him in law for espousing the grievances in the light of the provisions settled by the larger Bench. He submits that it is true that in the Constitution Bench decision in the case of Madras Bar Association Vs. The Union of India (supra), it has been held that Sections 5, 6, 7, 8 and 13 of the National Tax Tribunal Act have been declared as illegal and unconstitutional on the basis of parameters laid down by the decision of Constitution Bench of this Court and on the basis of recognized constitutional conventions referable to the constitutions framed on the Westminster model. He further submits that parliament has power to enact legislation and to vest adjudicatory provisions earlier vested in the High Court Patna High Court MA No.376 of 2019 dt.18-03-2026 with an alternative Court/Tribunal. Exercise of such power by parliament would not per se violative of the basic structure of the Constitution. But he submits that in spite of declaration of the National Tax Tribunal Act illegal and unconstitutional, there cannot be an automatic revival of the deleted provisions of the Central Excise Act, 1944 (Act No.1 of 1944) and, therefore, he submits that the present miscellaneous appeals are not maintainable and, hence, the appeals should be rejected and may not be entertained.

7. In the light of the submissions made by the parties, more particularly with a view to answer the issue framed by us about maintainability of the present appeals, it is necessary to place the relevant paragraphs of the said judgments on which parties have relied. Paragraphs 133 to 139 and paragraphs 169 to 175 of Madras Bar Association (supra) states as follows:

"133. Sections 5, 6, 7, 8 and 13 of the NTT Act have been held by us (to the extent indicated hereinabove) to be illegal and unconstitutional on the basis of the parameters laid down by decisions of the Constitution Benches of this Court and on the basis of recognised constitutional conventions referable to the constitutions Patna High Court MA No.376 of 2019 dt.18-03-2026 framed on the Westminster model. In the absence of the aforesaid provisions which have been held to be unconstitutional, the remaining provisions have been rendered otiose and worthless, and as such, the provisions of the NTT Act, as a whole, are hereby set aside.

135. (ii) Recognised constitutional conventions pertaining to the Westminster model do not debar the legislating authority from enacting legislation to vest adjudicatory functions earlier vested in a superior court with an alternative court/tribunal. Exercise of such power by Parliament would per se not violate any constitutional convention.

137. (iv) Constitutional conventions pertaining to the Constitutions styled on the Westminster model will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced are not incorporated in the court/tribunal sought to be created.