ORDER
U.L. Bhat, J. (President)
1. E/Reference 51/96-NB arises from a final order passed by Shri Gowri Shankar, Member Technical and E/Reference/124/96-NB arises from a final order passed by Shri J.H. Joglekar, Member Technical. Shri Gowri Shankar, Member Technical has since been transferred Bombay Bench. Shri J.H. Joglekar, Member Technical is presently sitting in a two-Member Bench and hence they are not available to sit in a single Member Bench to hear these reference applications. Hence by general order passed by President, these reference applications are to be posted for hearing before the regular single Member Bench for the day. In a similar situation, Shri S.K. Bhatnagar, Vice President had directed the Registry to place the reference application before the very Member who passed the final order in the appeal, Shri K. Sankararaman, Member Technical, who had passed the final order. This order was passed in Collector of Central Excise, Allahabad v. Chandra Industries, 1996 (88) E.L.T. 155 (Tribunal). This order was passed on 25-9-1996. It was reported in the issue dated 15-11-1996 of Excise Law Times. In view of this decision, the Registrar sought orders from the President who directed these reference applications to be placed before a two-Member Bench for consideration of the correctness of the order. That is how the matters have come before us.
2. Notice had been issued to the President of the CEGAT Bar Association indicating that the Bench will hear all advocates and consultants who desire be heard in the matter. In response to the notice, S/Shri K.K. Anand, J.S. Agarwal, V.S. Nankani and L.P. Asthana, Advocates and others addressed arguments. We have also heard Shri T.R. Malik, SDR.
3. Section 35G of the Central Excise Act, 1944 deals with references to High Court. On an application to be filed by Collector of Central Excise or other party with reference to an order under Section 35C, other than order of the nature specified, the Appellate Tribunal may draw up a statement of the case and refer the question of law arising out of the order, to the High Court or may refuse to state the case on the ground that no question of law arises. The parallel provision in the Customs Act, 1962 is contained in Section 129C. Under Section 35D of the Central Excise Act, 1944, the provisions of sub-sections (1), (2), (5) and (6) of Section 129C of the Customs Act, 1962 shall apply to the Appellant Tribunal in the discharge of its functions under the former Act. Section 129C of the Customs Act, 1962 deals with the procedure of Appellate Tribunal. According to Sub-section (6) of this provision, subject to the provisions of the 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 of the discharge of its functions, including the places at which the Benches shall hold their sittings. Accordingly, the CEGAT (Procedure) Rules, 1982 were made as per Notification No. l/CEGAT/82, dated 25-10-1982. Rule 31 of the Procedure Rules states that 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.
4. Ever since the establishment of the Tribunal, the practice has been to post reference applications before Benches that stood constituted for the day without breaking Benches to reconstitute them with the original constitution. One of the earliest office orders in this connection is Order No. 16 (Tech.) /1986, dated 18-8-1986 of the then President, Shri Venkatesan. The then President under Rule 31 of the Procedure Rules directed that until further orders reference applications under Section 35G of the Central Excises and Salt Act, 1944, or Section 130 of the Customs Act, 1962, or Section 82B of the Gold (Control) Act, arising out of the orders passed by the Special Benches ‘A’, ‘B1’, ‘B2’, ‘C’ and ‘D’ and by the South Regional Bench of the Tribunal shall be heard by Special Benches ‘A’, ‘B1’, ‘B2’, ‘C’ and ‘D’ and by the South Regional Bench respectively as constituted at the time each application comes up for hearing. This order was in confirmation of the existing practice and has been continued to be observed. One of the succeeding Presidents, Shri Harish Chander had also directed the Registry to post such applications before the appropriate Benches as constituted for the day. This was modified by Shri S.K. Bhatnagar, Vice President incharge by Notification No. 4/95, dated 30-5-1995 according to which reference applications and rectification of mistake applications (ROM) filed before a Bench shall be normally listed before the Bench consisting of the Members who passed the order and if any matter this is not feasible because one or the other Member (or both) is/are no longer available in the Tribunal for any reason or otherwise not practicable to constitute such a Bench due to absence of one or the other Member or otherwise, the Bench as constituted on the day the application comes up for hearing will be competent to hear and dispose of the matter.
5. Difficulties and complications were being experienced in the constitution of Benches for hearing ROMs and reference applications. In the light of the past experience, the present President issued Order No. 3/95, dated 6-11-1995 containing guidelines in the matter of posting ROMs and reference applications. The order dealt with applications arising out of orders passed by two-Member Benches. Where two-Member Bench is available with the same constitution as the one which disposed of the appeal leading to the application, the application will be posted before that Bench. Where such Bench is not available, but the Member who wrote the order in the appeal is a Member of any two-Member Bench, the application has to be posted before such Bench and if the Member who wrote the order in the appeal is not available, the application will be posted before the Bench of which a Member who was a party to the order-in-appeal is a Member. If neither of the Members is available, the application will be posted before the regular Bench. This was the substance of Office Order No. 3/95. A separate Office Order No. 7/95, dated 14-11-1995 was issued regarding posting of ROMs and reference applications arising out of orders passed by single Member Benches. Office Order No. 9/95, dated 12-12-1995 was issued regarding posting of such applications arising out of orders by three-Member Benches. We may incidentally note that in view of the decision of the Supreme Court in Elpro International Ltd. v. Collector of Central Excise, Pune, 1996 (84) E.L.T. 406 (S.C.), Office Order No. 9/95 in relation to three-Member Benches was amended by Office Order No. 11/96, .dated 7-6-1996 directing that rectification of mistake applications arising out of orders passed by three-Member Benches shall be placed before three-Member Benches. The order also regulated the manner in which the posting was to be done.
6. Going by the past practice in the Tribunal and the various office orders of the President as they stand today, the reference application dealt with in Chandra Industries case was to be posted before and heard by the regular single Member Bench which consisted of Shri S.K. Bhatnagar, Vice President at the relevant time, since Shri K. Sankararaman, Member Technical whose order led to the reference application was not available to sit single as he was a Member of a two-Member Bench at the relevant time. However, the order in Chandra Industries case directed the Registry to post the reference application before Shri K. Sankararaman without referring to the practice or the President’s order regarding postings holding the field but relying entirely on the decision of the Supreme Court in Elpro International Ltd. case and similar order passed by Shri S.K. Bhatnagar, Vice President in application E/Ref. /48/96-NB. We are concerned presently with the correctness of the view taken and direction given in Chandra Industries case.
7. In Elpro International Ltd. case, the final order had been passed by a three-Member Bench. There was a rectification of mistake application filed by one of the parties which was heard by a three-Member Bench which finally passed an order recalling the final order. The appellant filed further rectification of mistake applications which were placed before a two-Member Bench. One of the Members took the view that the application can be heard only by a three-Member Bench, while the other Member took the contrary view. The difference of opinion was referred to a third Member who agreed that the applications could be heard by a two-Member Bench as constituted by the President. Thus the majority view was that the application could be heard by a two-Member Bench and not necessarily by a three-Member Bench. This order was challenged before the Supreme Court. The question relating to the strength of the Bench which is to hear ROM application arising out of a final order passed by a three-Member Bench is seen considered in paragraph 9 of the judgment. ROM applications are dealt with by Rule 31A of the Procedure Rules which was incorporated by CEGAT Order No. 11/86, dated 14-2-1986. The language used in the rule is quite different from the language used in Rule 31. According to Rule 31A, ROM application is to be heard by a Bench consisting of the Members who heard the appeal giving rise to the application, unless the President otherwise directs. Supreme Court noticed that an order in ROM application will have the impact of altering, amending or modifying the final order and therefore, a final order passed by a three-Member Bench cannot be modified or altered or amended by a Bench consisting of lesser number of Members. The Court noticed the superiority of a full Bench over a Division Bench and of a Division Bench over a single Member Bench. It was pointed out that the object of constituting a Division Bench or a Full Bench is to create an opportunity for mature deliberation which improves and enhances individual decision making by adding perspectives and excluding or at least minimising faulty reasoning. It was also observed that judicial propriety and fairness require, that so long as it possible and feasible, the same number of Members should constitute the Bench to hear the rectification proceedings as well and that is also prudent and pragmatic and will avoid chaos. Supreme Court, therefore, found the majority decision of the Tribunal to be erroneous in law.
8. The appeal before the Supreme Court related to the question whether three-Member Bench or two-Member Bench should hear ROM application arising out of the order passed by three-Member Bench. Incidentally, in paragraph 8 of the order, the Supreme Court adverted to the identity of the Members of the Bench. Adverting to Rule 31A of the Procedure Rules, the Court observed that due to subsequent events there may be situation when one or, more Members who constituted the original Bench may cease to hold office and though ordinarily, rectification application should be heard by a Bench consisting of the Members who originally disposed of the appeal, the subsequent events or change in situation or altered circumstances, may render it impossible and in such a situation, it is certainly open to the President to direct that the application may be heard by a Bench consisting of Members who did not originally hear the appeal and passed the order and in such a contingency Members who constituted the Bench may be different. It was also further observed as follows :-
“Normally, it will not enable the President to constitute entirely a new and different Bench, even if one or more of the Members who heard the appeal and rendered the order are available.”
In Chandra Industries case, it was held that the observation made in connection with ROM applications will apply equally to reference applications, since the language used in Rules 31 and 31A of the Procedure Rules is similar. This is the basis of the decision. Therefore, it is necessary to examine the language of the two Rules.
9. Rule 31 of the Procedure Rules reads as follows :-
“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.”
Rule 31A of the Procedure Rules reads as follows :-
“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.”
(Emphasis supplied)
10. While it is true that the heading of both the Rules refer to the words “same Bench to hear”, there is considerable difference in the language used in the Rules. According to Rule 31, the same Bench which heard the appeal shall hear reference application unless the President directs otherwise. According to Rule 31 A, rectification of mistake application shall be heard by a Bench consisting of the Members who heard the appeal “unless the President directs otherwise”. The difference in language is crucial and self-evident. While in one case the same Bench is to hear unless the President otherwise directs, in the other case a Bench consisting of the very same Members is to hear unless the President directs otherwise. The heading of Rule 31 cannot override the language or the tenor or the meaning of the Rule.
11. It is not the law that whenever identical or similar word or words are used in different provisions of statute or rules, the word or words must be understood to have the same meaning. The principles of interpretation in this regard have been discussed by a constitution Bench of the Supreme Court in Shamrao Vishnu Parulekar and another v. The District Magistrate, Thana and another – AIR 1957 SC 23 in the context of the provisions of Preventive Detention Act, 1950. According to Section 3(3) of the Act, whenever an order of detention is made, the officer concerned shall forthwith report the fact to the State Government concerned together with the “grounds on which the order has been made” and such other particulars as in his opinion have a bearing on the matter. According to Section 7(1) of the Act, the authority making the order shall communicate to the detenu “the grounds on which the order has been made.” Thus, it is seen that the words “grounds on which the order has been made”, occur in both the provisions. These words occurring in Section 3(3) of the Act when construed in their natural and ordinary sense will include any information or material on which the order was based. However, it was held that the same words in Section 7(1) of the Act cannot be understood as including any information or material on which the order was passed. This view was taken on the basis of the difference in scope of the two provisions. Section 3(3) was intended to regulate the course of business between the Government and the subordinate authorities so that the State Government may satisfy itself whether detention should be approved or not, while the purpose of Section 7 was to enable the detenu to make a representation against the order. Since the scope of the two provisions and their purpose was different, the Court held that the same words in Section 7(1) of the Act must be understood as not including information or material on which the order was passed, though the same words used in Section 3(3) include such information or material.
12. The appellant before the Supreme Court placed reliance on the following passage in Maxwell’s Interpretation of Statutes, Edition 10, page 522:-
“It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act.”
As against the same, the Court relied on the following passages from Craies on Statute Law, Edition 5 page 159 :-
“The presumption that the same words are used in the same meaning is however very slight, and it is proper if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act.”
Reference was also made to a passage in Maxwell’s Interpretation of Statute at page 322 which reads as follows :-
“But the presumption is not of much weight. The same words may be used in different senses in the same statute, and even in the same section.”
The Supreme Court observed as follows :-
“The rule of construction contended for by the petitioners is well-settled, but that is only one element in deciding what the true import of the enactment is, to ascertain which it is necessary to have regard to the purpose and it is setting in the scheme of the statute.”
13. Let us now examine the scope of rectification or mistake application and that of reference application. Under Section 35C(2) of the Central Excise Act, 1944, Appellate Tribunal may, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) of that provision and shall make such amendments if the mistake is brought to its notice by the Collector of Central Excise or the other party to the appeal. Such applications are numbered as ROMs. The purpose of rectification of mistake application is to rectify a mistake apparent from the record. The effect of the order may be to alter, amend or modify the final order. The Procedure Rules as originally issued did not contain any provision with reference to rectification of mistake applications. Such a provision was incorporated under Rule 31A in 1986. It is significant that Rule 31A makes a deliberate departure from the language employed in Rule 31 dealing with reference applications, as we have already indicated. While Rule 31 speaks of the “same Bench”, Rule 31A speaks of “a bench consisting of the Members who heard the appeal.” The purpose of the provision in Rule 31A is that the very Members who committed the error apparent on the record, must be in a position to rectify the error and this position was restricted by providing that the President may direct otherwise. If the Members who constituted the original Bench are available, normally, they should constitute the Bench to hear the rectification of mistake application, unless the President otherwise directs. The President will not direct otherwise, if there is no practical or other difficulties in constituting a separate Bench.
14. The purpose of reference application is not rectification of an error apparent on the face of the record. The purpose is settlement by the jurisdic-tional High Court of a question of law arising from the final order. Reference application does not end by the Tribunal answering the question of law or correcting an erroneous view of law taken earlier. The reference application ends either with an order drawing up a statement of the case and referring the statement to the High Court or an order refusing drawing up a statement of the case. In the latter case, the unsuccessful party has option to approach the High Court to compel reference. In other words, the purpose of the reference application is to invoke the jurisdiction of the High Court in settling a question of law arising from the final order. Therefore, the considerations which led to the conclusion that as far as possible the same Members who passed the final order should hear the rectification of mistake application, cannot apply in the matter of hearing a reference application. The decision in Chandra Industries case did not examine the statutory purpose in providing for the two kinds of applications and the purpose underlying Rules 31 and 31A of the Procedure Rules and did not examine the necessity or otherwise of the same Members hearing the two kinds of applications in the background of the statutory purpose. The words “same Bench” vised in the head note of Rule 31A must take their colour from the language used in the rule, namely, “Bench consisting of Members who heard the appeal”, but this is not so in regard to Rule 31. The head note of Rule 31 as well as the Rule use the words “same Bench”. From the very inception, the Tribunal had two kinds of Benches, Special Benches which alone had jurisdiction to decide dispute regarding classification and valuation and what are called Regional Benches, which had jurisdiction to decide disputes not involving classification and valuation. All the Special Benches were located at Delhi, while the Regional Benches were located one each at Delhi, Bombay, Calcutta and Madras. The words “same Benches” used in Rule 31A of the Procedure Rules could be with reference to this classification of Benches. Four or five Special Benches existing at Delhi have always been classified as ‘A’, ‘B1’, ‘B2’, ‘C’ and ‘D’ with distinct jurisdiction subject-wise. The words “same Bench” in Rule 31 could legitimately refer to such classification also. The view that the words “same Bench” would mean the same Members who disposed of the appeal originally, may be a plausible view but not a correct or practical one. In fact, such a view had never been taken in one and a half decades existence of the Tribunal. Reference applications were always heard by the appropriate Benches constituted during the relevant period. As we have already indicated, the words used in Rule 31 of the Procedure cannot be understood or interpreted in the light of the words used in Rule 31A of the Procedure Rules or the decision of Supreme Court in Elpro International Ltd. case.
15. Chandra Industries case also did not attempt to examine the practice in the Tribunal or the President’s orders issued from time to time or to examine validity of these orders. The powers of the Tribunal are circumscribed by statute and the rules. One thing which is clear is that the Tribunal has no powers analogous to those under Article 226 of the Constitution. It is not open to a Bench of the Tribunal to strike down any order passed by the President in matter of constitution of Benches. Perhaps, that may be the reason why Chandra Industries case did not deal with any of the President’s orders referred to earlier by us.
16. We, therefore, hold that the observations of the Supreme Court in Elpro International Ltd. case with reference to rectification of mistake applications do not apply to reference applications and the constitution of Benches for hearing reference applications and posting of reference applications is governed by the orders issued from time to time by the President of the Tribunal. With respect we hold that the view taken and direction issued in the Chandra Industries case are not sustainable.
17. The Bench before which an appeal is posted for hearing may adjourn the same or hear the same, or if it appears to the Bench that the subject matter of the appeal is outside the subject allotted to the Bench, may direct the matter to be posted before the President for appropriate orders. As to which Bench is to hear the appeal is a matter connected with the roster and posting of cases which is within the jurisdiction of the President. Even if a Bench is of opinion that appeal has been erroneously posted before it, the Bench can only bring it to the notice of the President. The Bench cannot issue direction to the Registry to post the appeal before such and such Member or such and such Bench, for that is a matter within the exclusive jurisdiction of the President. Such a direction is not within the jurisdiction of the Bench and hence such directions can only cause embarrassment to the Bench and the Registry and will not serve any useful purpose. Even where such directions are issued by a Bench, it is the duty of the Registrar to place the matter before the President and obtain appropriate orders from the President and implement the same.
18. Registry shall post these reference applications in accordance with the orders in force of the President.