ROM - Same Bench to Hear?
RULE 31A of the CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL (PROCEDURE) RULES, 1982, stipulates;
31A. Same Bench to hear applications for rectification of mistakes: An application for rectification of a mistake apparent from the record, under sub-section (2) of section 129B of the Customs Act, or sub-section (2) of section 35C of the Central Excise Act, 1944, or sub-section (2) of section 81A of the Gold (Control) Act, shall be heard by a Bench consisting of the Members who heard the appeal giving rise to the application, unless the President directs otherwise.
Now an ROM is filed for rectification of a mistake apparent on record – no arguments, no debate – the mistake should be glaringly visible. Apparently such a mistake would be very costly. Suppose the order reads as, “appeal is dismissed” instead of, “appeal is allowed” - rectification is absolutely and urgently required.
Is it possible for the Bench consisting of the same Members to hear the ROM? Maybe in the early days of the Tribunal, it was possible. Now Members frequently sit on different Benches in different cities for various reasons like, leave, vacancy etc,. A member posted in Ahmedabad may sit for a few days in Chennai along with a Member posted in Chennai. After a few days, he goes back to his Original Bench. What if one of those orders passed by him sitting along with a Member from Chennai, needs Rectification?.
According to the above Rule, this Rectification Application can be heard only by the same members. Now when will the same two Members sit again in a Bench? Until they do so, the Rectification application cannot be heard – unless of course, the President directs otherwise. Now how can the President direct? How will the President know about it?. Will the Registry in all the Benches send such ROM applications to the President to constitute the same Bench again or constitute a new Bench to hear the ROM application? Till such time, will the Department keep quiet, if the earlier order was in its favour?
Of course, it is always advisable that the same Bench hears the ROM application as otherwise there may be chaos with different Benches holding the orders of other benches as containing apparent mistakes. But when it is difficult to constitute the same Bench again, another Bench should be allowed to hear the ROM. Or it can be made that the ROM can be heard by a Bench which includes the Member who wrote the Original order and only when he is not available, the President may allocate the case to another Bench.