Appellate Tribunal — Jurisdiction of Benches — Appeal wrongly placed before Single Member while Division Bench having jurisdiction — Order to be recalled. Central Excise Act, 1944 — S. 35D.

[Commissioner of C. Ex. Jammu v. Ultra Home Care Coils P. Ltd., (2010) (258) ELT 249 (Trib.-Del.)

An application for recall of the order and for vacating the stay order was filed. It is the contention of the applicant that the stay application in appeal was wrongly placed before the Single Member when the matter clearly involves the issue in relation to interpretation of exemption Notification and consequently, the jurisdiction to deal the same is vested with the Division Bench and therefore, the order passed by the Single Member is without jurisdiction.

The Tribunal observed that the records apparently disclosed that the matter involves interpretation of exemption Notification No. 56/2002-CE, dated 14-11-2002. The provision of S. 35D(3) reads thus :

“The President or any other member of the Appellate Tribunal authorised. On this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where —

(a) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved.”

Records apparently disclosed that the matter was placed before the Single Member merely because the amount involved was less than Rs.10 lakhs. There was no specific order by the President allotting the matter to the Single Member. Thus, the same could not have been heard and decided either on merits or for any interim relief by the Single Member. Therefore, the order in stay application had to be recalled and the said stay application was restored and fixed for fresh hearing.