Page 221 - ELT_1st July 2020_Vol 373_Part 1

2020 ]SHREE AMBE MATA INDUSTRIES v. COMMISSIONER OF C. EX. & CUS., AURANGABAD131

[Order]. - The applicant is before the Tribunal with a plea for recall of
Order No. A/94332/2016/SMB, dated 5th December, 2016 on the ground that
there are errors that are apparent from the record which can be rectified only by
passing a fresh order. According to the applicant, the submissions made during
the hearing were not considered and, had they been, the outcome would have
been materially different.
2. It is pointed out that decisions of Hon’ble High Court of Karnataka,
as affirmed by the Hon’ble Supreme Court, has been followed by the Tribunal
and in the present matter that was, inappropriately, distinguished by adverting
to another decision of the Tribunal which did depart from that line though other
decisions of the Tribunal did not. More especially, it is pointed out, that the deci-
sion of the Chennai Bench of the Tribunal, of which I was a constituent, in Com-
puter Graphics Ltd. v. Commissioner of Central Excise, Tirunelveli [Final Order Nos.
41185-41186/2016] should not have been discarded. It is further submitted that
the order failed to consider the decision of the Hon’ble High Court of Bombay, as
well as those of the Hon’ble High Court of Andhra Pradesh and Hon’ble High
Court of Jharkhand, which would have led to a decision in their favour.
3. It is also contended that, in view of division Benches of the Tribunal
having decided against Revenue, it is not open to a single member Bench to hold
differently and that, even if so inclined, the only course available was to refer the
matter to the Hon’ble President to constitute a Larger Bench to consider the issue
of divergence.
4. It must be asserted at the outset that no submission made during the
hearing was neglected; even if not referred to, the findings were not rendered by
relegating them to irrelevancy. That the decisions of the High Courts did held the
orders of the Tribunal to have correctly accorded precedential weightage to the
decision of the Hon’ble High Court of Karnataka is not in question. The record-
ing of one of these sufficed to obviate the need for adverting to the other judg-
ments.
5. Furthermore, it must be borne in mind that the issue in dispute is the
non-sanction of a refund claim. Each claim is disposed off on an appreciation of
the facts material to the claim, the statutory provisions governing the claim and
compliance with procedures that are particular to circumstances of the claim.
6. Turning to the grounds on which recall has been sought, it is seen
that two of these are inter-linked and, requiring disposal according to the law
enacted, are taken up at the outset : the impropriety of not subordinating to a
decision of division bench and reference to a larger bench. According to Learned
Counsel, the numerical inferiority of a single member Bench requires unques-
tioned acquiescence with orders of a division Bench. Furthermore, according to
him, any difficulty in such acquiescence, not only by a single member Bench but
also by another division bench, could be resolved only by placing the matter in
the hands of the Hon’ble President to constitute a Larger Bench to accord its rul-
ing on the impediment.
7. It is the submission of the Learned Counsel, most humbly couched as
it were, that a single member Bench is hierarchically inferior to division Bench
and that the decision of in Bangalore Cables P. Ltd. v. Commissioner of Central Ex-
cise, Bangalore [2017 (347) E.L.T. 100 (Tri. - Bang.)] should have been followed.
EXCISE LAW TIMES  1st July 2020  221