National Woollen Mills Vs. Collector of Central Excise - Court Judgment

Excerpt:
1. by the rom application, the applicant has prayed for the fixation of date for hearing of rom application before the bench consisting of three members. shri n. singh, the ld. counsel arguing on the application submitted that the apex court in the case of elpro international ltd. reported in 1996 (84) e.l.t. 406 held that judicial propriety and fairness require that so long as it is possible and feasible, the same member bench should constitute the bench to hear the rectification proceedings as well. the apex court further held that it is also prudent and pregmatic and will avoid chaos. the ld. counsel submitted that in the instant case, appeal no. c/31/89-a was decided by three members bench by its final order no. 295/91-a; that when rom application no. c/rom/76/92-a was filed by the appellants for rectification of certain mistakes, this rom application was heard by a bench of two members. he submitted that in view of the apex court's rulings, rom application should have been heard by three member bench; that at the time of hearing the application, an objection was raised by the appellants as to how a rectification application could be decided by two members; that the objection was overruled and the rectification application was rejected.2. shri m. ali, the learned sdr appearing for the respondent submits that insofar as the constitution of the bench is concerned, he has nothing more to add in view of the apex court's decision in the case of elpro international ltd. 3. on careful consideration of the submissions made by both sides, we accept the prayer for deciding the rom application by a bench consisting of three members and we hold accordingly. in the result, the tribunal's misc. order nos. 6-7/96-a, dated 3-1-1996 is recalled.4. with the consent of both the parties, we proceed to decide the rom application no. c/rom/76/92-a. we find in this rom, the applicant has pointed out the following three mistakes : (1) that the tribunal had not taken into consideration the ratio of the decision in the case of jain shudh vanaspati ltd. though this decision of the cegat was confirmed by the supreme court and m/s. kakkar and co. and ors. reported in 1988 (35) e.l.t. 712 though this decision was approved by the supreme court; (2) that the tribunal relied upon the judgment of the apex court in the case of menon abdul karim hazi v. custodian general, new delhi and ors. reported in air 1964 sc 1256 which was neither cited nor relied upon by the litigants; and 6. shri m. ali, the learned sdr appearing for the respondents submitted that both the judgments of the tribunal in the case of kakkar and co.and others and jain shudh vanaspati ltd. were considered by the tribunal in para 4 of their order and held that these judgments are of no relevance so far as the present case is concerned. on the question of public notice no. 33/88, the tribunal relied on the judgment of the apex court in the case of menon abdul karim hazi v. dy. custodian general, new delhi and ors. reported in air 1964 sc 1256. in this case, we find that the judgments of the apex court are in the form of law of land, therefore, a reliance can be placed in a judgment of the apex court which is relevant to the issue. in this case, the tribunal observed that it is a well known proposition of law that procedural amendments to a law in the absence of anything to the contrary, operate retrospectively in the sense that they apply to all actions after the date they come into force. thus, there can be no mistake apparent in respect of this nor can it be treated as a mistake. we also observe that the tribunal discussed the controversy raised by the appellants that the p.n. no. 33/88 is undated in the first instance and that it cannot be inferred therefrom that it is prevalent before the importation of consignment in question is of no consequence. we do not find any mistake in this observation of the tribunal in dealing with p.n. no. 33/88. from the above discussion, we find that every point was discussed and dealt with by this tribunal and there has been no mistake apparent as contended by the applicants. in the facts and circumstances of the case, we observe that there is no error or mistake apparent from the record which needs rectification. in the circumstances, we are not inclined to accept the plea of the applicants. the rom application is, therefore, rejected.

Judgment:
1. By the ROM application, the applicant has prayed for the fixation of date for hearing of ROM application before the Bench consisting of three Members. Shri N. Singh, the ld. Counsel arguing on the application submitted that the Apex Court in the case of ELPRO International Ltd. reported in 1996 (84) E.L.T. 406 held that judicial propriety and fairness require that so long as it is possible and feasible, the same Member Bench should constitute the Bench to hear the rectification proceedings as well. The Apex Court further held that it is also prudent and pregmatic and will avoid chaos. The ld. Counsel submitted that in the instant case, Appeal No. C/31/89-A was decided by Three Members Bench by its Final Order No. 295/91-A; that when ROM Application No. C/ROM/76/92-A was filed by the appellants for rectification of certain mistakes, this ROM application was heard by a Bench of two Members. He submitted that in view of the Apex Court's rulings, ROM application should have been heard by Three Member Bench; that at the time of hearing the application, an objection was raised by the appellants as to how a rectification application could be decided by two Members; that the objection was overruled and the rectification application was rejected.

2. Shri M. Ali, the learned SDR appearing for the respondent submits that insofar as the constitution of the Bench is concerned, he has nothing more to add in view of the Apex Court's decision in the case of ELPRO International Ltd. 3. On careful consideration of the submissions made by both sides, we accept the prayer for deciding the ROM application by a Bench consisting of three Members and we hold accordingly. In the result, the Tribunal's Misc. Order Nos. 6-7/96-A, dated 3-1-1996 is recalled.

4. With the consent of both the parties, we proceed to decide the ROM Application No. C/ROM/76/92-A. We find in this ROM, the applicant has pointed out the following three mistakes : (1) that the Tribunal had not taken into consideration the ratio of the decision in the case of Jain Shudh Vanaspati Ltd. though this decision of the CEGAT was confirmed by the Supreme Court and M/s.

Kakkar and Co. and Ors. reported in 1988 (35) E.L.T. 712 though this decision was approved by the Supreme Court; (2) that the Tribunal relied upon the judgment of the Apex Court in the case of Menon Abdul Karim Hazi v. Custodian General, New Delhi and Ors. reported in AIR 1964 SC 1256 which was neither cited nor relied upon by the litigants; and 6. Shri M. Ali, the learned SDR appearing for the respondents submitted that both the judgments of the Tribunal in the case of Kakkar and Co.

and Others and Jain Shudh Vanaspati Ltd. were considered by the Tribunal in Para 4 of their Order and held that these judgments are of no relevance so far as the present case is concerned. On the question of Public Notice No. 33/88, the Tribunal relied on the judgment of the Apex Court in the case of Menon Abdul Karim Hazi v. Dy. Custodian General, New Delhi and Ors. reported in AIR 1964 SC 1256. In this case, we find that the judgments of the Apex Court are in the form of law of land, therefore, a reliance can be placed in a judgment of the Apex Court which is relevant to the issue. In this case, the Tribunal observed that it is a well known proposition of law that procedural amendments to a law in the absence of anything to the contrary, operate retrospectively in the sense that they apply to all actions after the date they come into force. Thus, there can be no mistake apparent in respect of this nor can it be treated as a mistake. We also observe that the Tribunal discussed the controversy raised by the appellants that the P.N. No. 33/88 is undated in the first instance and that it cannot be inferred therefrom that it is prevalent before the importation of consignment in question is of no consequence. We do not find any mistake in this observation of the Tribunal in dealing with P.N. No. 33/88. From the above discussion, we find that every point was discussed and dealt with by this Tribunal and there has been no mistake apparent as contended by the applicants. In the facts and circumstances of the case, we observe that there is no error or mistake apparent from the record which needs rectification. In the circumstances, we are not inclined to accept the plea of the applicants. The ROM application is, therefore, rejected.