REFERENCE TO LARGER BENCH: POINTS OF DIFFERENCE

REFERENCE TO LARGER BENCH: POINTS OF DIFFERENCE

Introduction: -

The present article tries to visualize the subject of reference to Larger Bench in case of difference of opinion between different benches of Tribunal. This article ponders over the subject whether the case can be referred even if there is no difference of opinion in different benches.

The back drop story: -

Recently, I was attending a hearing in the Appellate Tribunal before a Single Member Bench for inclusion of galleries in length of Chamber for calculation of duty liability for independent processors covered under Section 3A of Central Excise Act. There was divergent decision on the subject. The New Delhi Bench in case of C.M.Paints & Ors. V/s. CCE [2000 (40) RLT- 220] held that gallery is includible in length of chambers whereas the Chennai Bench in case of Chimanlal Silk Mills (P) Ltd. V/s. CCE, Hyderabad [2000 (39) RLT-608] & R.M.Gupta Textiles (P) Ltd. V/s. CCE, [2000 (40) RLT-234] held that it is not includible. The question arose that the matter should be referred to Large Bench.

It was argued that since there is a difference of opinion between the double benches of Tribunal. The matter should be referred to larger bench but the argument advanced by us that the Delhi bench has given a verdict on one reasoning, i.e. seeking the function of gallery. But the Chennai bench has given the decision on two merits made by Notification No. 14/2000 (CE) NT dt. 01.03.2000 by which gallery are excluded from March 1, 2000. He argument that the matter should not be referred to larger bench though there is a difference of opinion on first point but there is no difference on second merit as it was not considered by Delhi bench. But the matter could not take its final step and was adjourned for next date and clubbed with other cases.

Provisions: -

Now we will try to see the provisions of reference to larger bench in this article. Section 129(5) of Customs Act is a relevant provision which is enumerated below:-

“5 If the members of the bench difference opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the president for hearing on such point or points by one or more of the other members of Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of members of the Appellate tribunal who have heard the case including those who have first heard it provided that where the members of a special Bench are equally divided, the point or points in which they difference shall be decided by the president.”

The aforesaid provisions clearly bring about a distinction between point of difference as well as the case. The matter will be referred on the points of difference. So, the matter can be referred to president for constituting larger bench on points of difference only. There can be difference on a point like in above case but it can be decided on other point on which there is no difference.

Judicial Rulings:

Furthermore, the Apex Court has given a decision in case of Union of India V/s. Paras Laminates (P) Limited [1990(49) ELT-322(SC)] which is also relevant. The ratio decindandia

of aforesaid decision is applicable on the subject.

Earlier decision of tribunal not likely to be disregarded specially when, they are rendered by larger benches. But Two Member Bench has freedom to doubt the correctness of earlier decisions of three member Bench and refer the case to Larger Bench.”

It further held that:-

“A bench of two members should not lightly disregard the decision of another Bench of the same Tribunal or any identical question, especially when the earlier decision is rendered by Larger Bench. Rationale of this rule is the need of continuity, certainty and predictability in administration of justice because the affected person has a right to expect that earlier decisions in identical matters will be followed. It is, however, equally true that it is vital to the administration of justice that those exercising judicial powers must have necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as an erroneous decision in earlier case. In such circumstances, it is reasonable and indeed efficacious that a case if referred to Larger Bench.”

So, the single member Bench hearing the case can refer the matter to larger Bench when he do not agree with the decision. Even in the present case, the Single Member can refer the matter to Larger Bench if he do not agree with second finding of retrospective effect of amendment of two member bench. But they can not refer simply on the ground that there was divergent decision on the subject.

CONCLUSION:

Therefore, the conclusion of the complete discussion is that:-

(i) a case can be referred to a larger Bench on points of difference between different Benches of a tribunal.

(ii) But if the case can be distinguished on the basis of any point on which there is no difference of opinion between the benches, then it can not be referred to larger Bench.

(iii) However, the Bench hearing the case can refer it to larger Bench by saying that I do not agree with earlier decision on the point. But it can not be simply referred on the basis of divergent view of benches.

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REFERENCE TO LARGER BENCH: POINTS OF DIFFERENCE

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