ORDER
S.L. Peeran, Member (J)
1. In this ROM, the applicant has submitted as follows :
(i) That the Member (J) in para 14 of the order in question had held that the matter requires re-consideration before Larger Bench of five Members and also desired for placing before the President for appropriate orders. While the Member (T) in the concluding para of his order viewed that it may not be absolutely essential in the facts of the present case for having a Larger Bench constituted for deciding the issue. Therefore, there is difference of opinion between the Members as to whether the same should be referred to the President for constitution of Larger Bench of five members or not. That as per Statutory Provisions contained in Section 35D(1) of the Central Excises and Salt Act, 1944 read with Sub-section (5) of Section 129C of the Customs Act, 1962; when there is difference amongst Members of the Benches and if there is no majority opinion, the point on which they differ, they shall make a reference to the President who shall either hear the point or points himself or refer the case for hearing of such point or points by one or more of the other Members of the Tribunal. This provision is mandatory and the Member (J) having once signed the order is ceased of the matter and becomes functus officio and cannot reconsider himself that is to say that as per the statutory scheme, the Members of the Bench have to refer the point of difference to the President and cannot themselves reconsider the matter. The applicant had a right to be heard on this point of difference of opinion whether the case should be referred to the President or not. That this is a mistake apparent from the records and calls for rectification under Section 35C(2) of the Central Excises and Salt Act, 1944.
(ii) That the other mistake apparent from the records is the finding of the Member 0) in para 8 of the order to the effect that :-
“As such the claim of refund in this case has arisen only after the issue of Notification No. 182/82-C.E., dated 11-5-1982 and the lower authorities have rightly dealt with the claim of the appellants from the date of its applicability.”
It is pointed out from para 1 of the order-in-original and from the order-in-appeal that the refund claim dated 8-9-1982 was for the period from 22-4-1982 as per Notification No. 149/82 dated 2-4-1982 and the refund claim under Notification 149/82 as well as No. 182/82 was rejected by the Asstt. Collector vide order dated 1-4-1983 and the said order of the Asstt. Collector was set aside by the Collector (Appeals) on 4-2-1985 with the direction for consequential relief if otherwise admissible. That this is an error apparent on the face of the record as Member (J) as well as Member (T) in their respective orders have proceeded on the basis that the refund of the applicant was not cited under Notification No. 142/82 or prior to the issue of Notification No. 182/82 on 11-5-1982. The order of the Tribunal has proceeded entirely on different grounds and basis. Thus, the error goes to the very root of the case and is fatal.
(iii) That the Member (J) in para (8) of the order had recorded a finding to the effect that if the appellant had not challenged the classification or paid the duty under protest, cannot now raise reclassification of goods retrospectively. It is pointed out that this finding is also mistake apparent from the records. It is urged that Section 11B of the Central Excises and Salt Act, 1944 under which the refund was filed, does not bar refund claim which are contrary to the approved classification list nor that Section requires that payment of duty under protest is necessary for claiming the refund. It is stated that in the case of payment of duty ‘under protest’ there is no time limit for claiming the amount which clearly demonstrates that the payment of duty under protest is not a condition precedent for claiming the refund. Thus it is stated that there is a mistake apparent on the face of the record in this aspect in the order of Member (J). Hence, the applicant has prayed for recall of the order and grant of a fresh hearing or in the alternative, the combined order of both the members dated 3-5-1991 be rectified and the points of difference be drawn and referred to the President under Section 35D(1) read with Section 129C(5) of the Customs Act for resolving the difference of opinion.
2. We have heard Shri R.K. Jain, learned consultant for the applicant and Shri L.N. Murthy, learned JDR for revenue. Reiterating the grounds of appeal Shri Jain submitted that he would not prefer the ground for referring the matter to Larger Bench in the event of the Bench applying the ratio of the Supreme Court rendered in the case of Elson Machines as reported in 1988 (38) E.L.T. 571 as applicable to Section 11B of the Central Excises and Salt Act, 1944. He submitted that the admitted position is that classification was not challenged by filing an appeal against its finalisation and also that duty was not paid under protest. He contended that the Deptt. had not challenged the order of Collector (Appeals) dated 4-2-1982 and hence it has to be inferred that Notification No. 182/82 dated 11-5-1982 is applicable to assessee. Therefore, the finding given by the members on its non-applicability is beyond the scope of grounds of appeal and hence it is a mistake apparent on record calling for rectification. He contended that refund application can be filed within six months even if classification is not challenged and as also held in Sarabhai Chemicals v. CC – reported in 1992 (59) E.L.T. 72, CCE v. Vikrant Tyres – reported in 1992 (58) E.L.T. 224. The Asstt. Collector had held that the assessee is not eligible to Notification No. 182/82 but Collector (Appeals) having set aside the order and the Deptt. having not came in appeal, the Bench was not competent to give any finding on its eligibility and it has been so dealt that a mistake has arisen calling for rectification.
3. Shri L.N. Murthy, arguing for the revenue submitted that with regard to matter of reference to Larger Bench, he would leave the matter to the discretion of the Bench. He contended that the learned Collector had not given any finding on the eligibility of Notification No. 182/82 and therefore, the Tribunal can independently examine its applicability and give its finding. Thus there is no mistake apparent on record. He contended that Member (J) in para 8 of his order had held that there is no infirmity in the impugned order of Collector and therefore it followed the exemption under Notification No. 182/82 is not available to the assessee. The Member (T) had also dealt independently and examined this aspect and has held that the assessee is not entitled to the benefit of the Notification No. 182/82. Therefore, there being no mistake in the order the question of rectification of any mistake does not arise.
4. Shri Jain countering the arguments contended that the Collector had not given any finding on eligibility of Notification No. 182/82 and the matter required to have been remanded for fresh adjudication and as the Tribunal has pronounced its finding without an opportunity having been given to the assessee, a mistake had occurred calling for rectification. He prayed that the order of the Tribunal be recalled and fresh hearing be given.
5. We have carefully considered the submissions made by both the sides and have perused the records and also the order passed by us in this appeal. There are two grounds on which the learned Consultant has argued for reopening the case by recalling the final order passed by us.
6. The first ground made by the learned Consultant is that Member (Judicial) had recommended the case for Larger Bench which had been negated by Member (Technical) and as there is difference of opinion on this point, the matter was required to have been referred to the President for resolving the difference. In this context, it has to be said that the learned Member (Technical) has given very valid reasons for not recommending this matter to the Larger Bench and that has been accepted by Member (Judicial) when the final order was formulated by them. Therefore, it cannot be said that Member (Judicial) continued to differ on this point but had agreed with Member (Technical) for the reasons given in the order. The learned Member (Technical) in his order had brought out very valid reasons for not referring the matter to Larger Bench as the matter had been settled by the rulings rendered by the Hon’ble Supreme Court in the case of Elson Machines & Plasmac Machines Mfg. Co. – 1991 (51) E.L.T. 161 (SC); ITC Ltd. v. Union of India -1988 (34) E.L.T. 473 (Cal.) rendered by Calcutta High Court and that of Allahabad High Court in the case of Triveni Structurals Ltd. – 1987 (30) E.L.T. 707 (All.). In view of this settled position of law, Member (Judicial) had agreed to sign the final order and therefore, it cannot be said that there remained a difference of opinion for reference to Third Member.
7. The second point raised by the Consultant for recalling the order is that the learned Member (Technical) had given a opinion on benefit of Notification No. 182/82 on merits which had not been dealt with by learned Collector in his order. Therefore, the learned Member (Technical) having proceeded beyond the terms of the lower authorities order, a mistake has arisen in the order. This has been countered by the learned DR and in his submissions, he contended that the learned Member (Technical) had rightly gone into the question of applicability of notification and had found the appellants not being found entitled to the benefit. The learned DR had also stated that the Tribunal had the powers to go into the question of applicability of the notification on the records available before us. The arguments of the DR are quite valid and it is a settled proposition of law that the Tribunal can pronounce its order on different reasoning on the basis of the facts available from the records. Therefore, there is no mistake arising from the record for recalling the order.
8. The learned Member (Technical) has given his findings as regards the availability of the benefit of notification and it cannot be said that Member (Judicial) has not agreed to the said findings as the final order has been signed by Member (Judicial) agreeing to the said findings. Therefore, it cannot be said that the order of Member (Technical) has not been agreed to by Member (Judicial) and there is mistake on record. There are no mistakes apparent on the face of records calling for rectification of this order. Therefore, there being no merit in this application, the same is rejected.
K.S. Venkataramani, Member (T)
9. While respectfully agreeing with Hon’ble Member (Judicial)’s order above, it may be added that the question of eligibility to Notification No. 182/82 as well as Notification No. 149/82 had been considered and dealt with by the Assistant Collector while disposing of the refund claim vide Order-in-Original dated 27-4-1986 and with the passing of the order by Collector (Appeals) thereon, the two orders had merged and that was the matter which was before the Tribunal for consideration. Therefore, there is no infirmity in the Tribunal traversing the aspect of eligibility to the notification in its order. Both the Members have given a finding of that on merits the order passed by the lower authorities was correct in law. The Member (Judicial) had in terms agreed with the Member (Technical) on this aspect expressly. In such a situation and in the light of the discussion in the Hon’ble Member (Judicial)’s order above, it has to be held that there is no mistake apparent on the face of the record in the impugned order of the Tribunal calling for rectification.