ORDER
G.P. Agarwal (J), Member
1. The present Larger Bench has been constituted by the Hon’ble President of the Tribunal to consider the point referred to it by the Referring Bench comprising S/Shri G.A. Brahma Deva, Member (Judicial) and P.K. Kapoor, Member (Technical).
When the case was called on for hearing, the learned Joint C.D.R., 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 taking into account the earlier decision of different Benches reported in 1990 (48) E.L.T. 552 and 1991 (56) E.L.T. 798.
(2) The earlier decisions rendered by the other benches had decided that the Modvat Credit under Rule 57A would not be available in respect of the inputs Ramming Mass used in relation to the manufacture of end-product steel ingots.
(3) The finding of the Hon’ble North Regional Bench in the impugned order is neither in the nature of prima facie finding nor it is tentative. Therefore, it is not open to the Hon’ble Members of the North Regional Bench to change their opinion in this regard on re-hearing of the case.
(4) The present five member Larger Bench constituted under the orders of the President also includes two Hon’ble Members who have recorded their considered opinion against the Department in their earlier order.
(5) It is, therefore, respectfully submitted that the Hon’ble Larger Bench as presently constituted, is heavy weighed against the case of the Department.
(6) If the present constitution of the Bench is maintained, the Departmental side will have to convince by their arguments in its favour all the other three Members whereas the opposite side would have to convince only one of them to make a majority of three Members to get the final decision in their favour.
(7) In view of the above, the present Larger Bench cannot be considered to be evenly balanced as to consider the merits of the case on both sides.
(8) The consideration of the 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 Consultant, after replying to the objection raised by the learned Jt. CDR, submitted that the views expressed by both the Learned Members comprising the Referring Bench, are not final in nature and the apprehension of Shri Bhatia is ill-founded. Elaborating on his submissions he submitted that the matter is at large before the present Bench and all the members are free to take their independent view after hearing both sides. He also stressed that the Hon’ble President of the Tribunal has an exclusive jurisdiction to constitute the larger Bench and its composition cannot be challenged on the ground of propriety and the preliminary objections raised by the Id. Jt. CDR is not in good taste.
3. We have considered the submissions. The present appeal has been filed by the appellants under Section 35B of the Central Excises and Salt Act, 1944.Sub-Section (1) of Section 35B of the Act provides that provisions of Sub-sections (1), (2), (5) and (6) of Section 129C of Customs Act, 1962 shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962.Sub-Section (5) of Section 129C of the Customs Act, provides for referring the point for determination to the President for hearing if the Members of the Bench differ in their opinion on it. Interpreting this section, the Hon’ble Supreme Court in the case of Union of India v. Paras Laminates (P) Ltd. 1990 (49) E.L.T. 322 (S.C.) held that it is 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 if any party is of the view that the propriety demands that the composition of the Larger Bench should be otherwise and not as con- stituted by the Hon’ble President, he may approach the Hon’ble President if law or procedure permits but certainly he cannot challenge the composition of the Larger Bench before the Bench itself on the ground of propriety.
In view of the above, we overrule the preliminary objection.