Page 253 - ELT_15th July 2020_Vol 373_Part 2

2020 ] COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX v. GAURAV PHARMA LTD. 235

opined that the appeal against the order passed under Section 110A of the Cus-
toms Act, is not maintainable, referred the matter to the President of the Tribunal
for constitution of a Larger Bench to decide the issue. It is how the matter was
listed before a Bench consisting of five member including the President of the
Tribunal.
3. Learned Counsel for the appellant sought to argue that two Member
Bench could not have possibly referred the matter to the Five Member Bench as it
could at the best be referred to a Larger Bench of three members. In earlier case,
which was doubted, the matter was considered by a third member on a differ-
ence of opinion by two members. He further submitted that any order passed
under Section 110A of the Customs Act is an administrative order, hence, no ap-
peal was maintainable against the same before the Tribunal under Section 129A
of the Customs Act.
4. After hearing Learned Counsel for the appellant, we do not find any
merit in the submissions made. Two Member Bench of the Tribunal having
doubt on the opinion expressed by an earlier decision of Larger Bench in Akank-
sha Syntax Private Limited’s case (supra), vide order dated 25-5-2015 referred the
matter to the President of the Tribunal for consideration and constitution of a
Larger Bench for decision of the issue. Relevant para thereof is extracted below :-
“The registry is directed to place the records before the Hon’ble Presi-
dent for consideration and to constitute the Larger Bench of this Tribunal to
decide above mentioned issue.”
5. A perusal of the aforesaid para of the two Member Bench of the Tri-
bunal shows that first contention raised by Learned Counsel for the appellant is
totally misconceived as the matter was not referred to be heard by a Bench con-
sisting of five members by the two members as it was merely referred to the
President of the Tribunal for constitution of a Larger Bench. Thereafter, it was an
administrative action by the President of the Tribunal considering the circum-
stances of the case as to how much members should constitute the Larger Bench.
6. Issue regarding jurisdiction of the President of the Tribunal to consti-
tute larger Bench for hearing of a case was considered by Hon’ble the Supreme
Court in Union of India and Another v. Paras Laminates (P) Limited - (1990) 4 Su-
preme Court Cases 453, and it was opined that the President of the Tribunal has
the power to constitute a Larger Bench, as the power is inherent in Section
129(C)(5) of the Customs Act. Relevant paras 10 and 11 of the aforesaid judgment
are reproduced hereunder :-
“10. That the President has ample power to refer a case to a Larger
Bench is not in doubt in view of sub-section (5) of Section 129C, which we
have set out above. That provision clearly says that in the event of the
members of a Bench differing in opinion on any point, and the members are
equally divided, the case shall be referred to the President for hearing on
any such point by one or more for members of the Tribunal, and such point
shall be decided according to the opinion of the majority of the members.
11. It is true that sub-section (5) refers to difference of opinion aris-
ing amongst members of a Bench in a particular case, and not specifically
where the members of a Bench doubt the correctness of an earlier decision.
However, Section 129C confers power of reference upon the President. That
power should be construed to be wide enough to enable the President to
make a reference where members of a Bench find themselves unable to de-

EXCISE LAW TIMES  15th July 2020  253