ORDER
K.K. Usha, J. (President)
1. Vide Order dated 22-8-2002 the Division Bench of the West Regional Bench of the Tribunal has referred the following questions for being considered by the Larger Bench of more than 5 Members :-
(i) In a case where no particular case law is cited before the Tribunal and the Tribunal proceeds to make a decision, whether the argument that the case law was not taken note of, would form the ground for plea of an error apparent on the face of the record?
(ii) Where a judgment, is delivered taking into account available case law, and where there is a later judgment by a superior forum, whether such decision subsequently given would enable the plea of mistake to be raised and
(iii) Whether Bench of the Tribunal situated in Mumbai would be governed by the law laid down by the jurisdictional High Court or whether it would be bound by a decision given by the Larger Bench of the Tribunal.
Before we answer the questions referred above, we may point out that it is not proper for a Division Bench to seek a reference to Larger Bench of more than 3 Members. There is an authoritative pronouncement on this issue by the Hon’ble Supreme Court of India in Pradip Chandra Parija v. Pramod Chandra Patnaik – 2002 (144) E.L.T. 7. It is held that Judicial discipline requires that in the normal course two Judges Bench would follow the decision of the Bench of three learned Judges. If two Judges Bench concludes that the earlier judgment of three learned Judges is very incorrect and under no circumstances to be followed, proper course is to set out the reasons why it could not agree with the earlier judgment and refer the matter to a Bench of three Judges and if then the Bench of three judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, it should refer the matter to a Bench of five learned Judges.
2. As far as questions 1 and 2 referred above, we find that the issue
has been already considered by the Larger Bench in 2000 (122) E.L.T. 282 – Gujarat State Fertilizers & Chemicals Ltd. v. C.C.E., Vadodara. It has been held
that non-reference to an existing judgment and failure to rely on the same is
not a ground for rectification of an order. It was further held that a subsequent decision of the Tribunal or a Court is also no ground for entertaining
an application for rectification. The Majority view of the Larger Bench was on
the basis of a decision of the Supreme Court in Dokka Samuel v. Dr. Jacob Laza
rus Chelly – 1997 (4) SCC 478. In the above judgment the Apex Court has held that omission to cite an authority of law is not a ground for reviewing the prior judgment on the ground of an error apparent on the face of the record. Learned Counsel for the appellants placed before us the following decisions in support of his argument :
(i) C.C.E., Chandigarh v. Kashmir Conductors – 1997 (96) E.L.T. 257 (T).
(ii) Richardson Crudas Ltd. v. C.C.E. [2002 (145) E.L.T. 168 (T) = 2002 (49) RLT 239] (iii)Standard Radiators v. CIT -1987 (185) ITR 178. (iv) Controller Estate Duty v. KG. Badami -1990 (186) ITR 170. (v) B.V.K. Seshavataram v. CIT -1994 (210) ITR 633. Admittedly, none of the above decisions had been rendered by the Apex Court. We do not find any reason to refer this matter to a Larger Bench of
seven Members doubting the reasoning given by the five Member Bench following the dictum laid down by the Supreme Court.
3. Regarding question (iii) referred we hold that in the normal circumstances if there is conflict between law laid down by a High Court and
the ratio of the decision of the Tribunal, whether it is a Larger Bench or not,
the High Court decision will prevail over the Tribunal decision. As in the
present case, if the Tribunal decision is based on the ratio of the Supreme
Court decision then it is really a conflict between a decision of the Apex
Court that of the High Court and naturally the decision of the Apex Court
will prevail in view of the provisions of Article 141 of the Constitution.
4. We answer the questions referred above and send back the matter to West Regional Division Bench for appropriate orders on the applications.