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.