P.S. Bajaj, Member (J)
1. Applicants have filed the present ROM application seeking recall of the Tribunal’s Final Order No. A/1298/99-NB (SM), dated 26-11-1999 vide which their appeal against the Order-in-Appeal dated 26-5-1998 passed by the Commissioner (Appeals), Central Excise, Indore was dismissed.
2. The applicants procured diesel engine sets without payment of duty by claiming benefit of Notification No. 1/95-C.E., dated 4-1-1995 which provided nil rate of duty on purchase of such sets by an-EOU after necessary permission from the Board/ Committee. They were however denied the benefit of this Notification, for having not complied with the conditions mentioned therein, and duty demand of Rs. 2,65,000/- was confirmed on them by the Deputy Commissioner through Order-in-Original, dated 17-7-1997 and that Order was later on confirmed by the Commissioner (Appeals) through Order-in-Appeal, dated 26-5-1998.
3. The appellants challenged the above said order of the Commissioner (Appeals) before the Tribunal in appeal which was heard by the Single Member and the same was dismissed through impugned Final Order, dated 26-11-1999.
4. The recall of the above said order of the Tribunal has been sought by the applicants solely on the ground that Single Member had no jurisdiction to hear and decide the appeal as the interpretation of Notification No. 1/95-C.E., dated 4-1-1995, the benefit of which had denied to them, was involved.
5. I have heard both the sides.
6. It cannot be disputed that the Single Member had the jurisdiction to decide the appeal of the applicants and as such it is not a case of initial lack of jurisdiction. Therefore, the impugned final Order passed by Single Member of the Tribunal, cannot be treated as nullity, invalid, for want for inherent jurisdiction to decide the matter, when the Member of Tribunal would dispose of which matter, is one of administrative convenience, it does not relate to his jurisdiction. Since the Tribunal consists of several Members, a Bench consisting of Single Member, may be competent to dispose of certain matters, while some other matters may be entrused to Two Members Bench. But this arrangement made on administrative convenience, would not take away the inherent jurisdiction of the Single Member to hear and dispose of the matter which otherwise under the administrative arrangement, may have gone to the Two Members Bench.
7. Moreover, the matter having been decided by Single Member after considering the case on merits and hearing both the sides, it is not legally open to the applicants being an unsuccessful party, to plead later on that the Member had no jurisdiction to decide the issue and that his order suffers from the initial lack of jurisdiction, especially when no objection regarding the jurisdiction of the Member to hear the appeal on merits, was taken when the matter came up for hearing before him. In this context, reference may also be made to the Apex Court judgment in Indermani Kirtipal v. U.O.I, and Ors. -1996 (2) SCC 437 where in similar circumstances it has been so ruled.
7. On merits no mistake/error of fact or law staring on the face of the impugned final order of the Tribunal, has been pointed out so as to recall the same.
8. In view of the discussion above, there is no merit in the ROM application of the applicants and the same is dismissed.