Can an order referring an issue to Larger Bench be appealed against in High Court?
THE Madras High Court considered this issue in the above appeal.
The High Court noted that as per Section 30 of the Customs Act, "An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal …"
It is clear that unless a person is aggrieved by an order of the Tribunal, an appeal cannot be maintained. A reference made by one Bench of a Tribunal to a Larger Bench, on the ground that two Benches of coordinate jurisdiction had come to different conclusions on the same issue, is not a decision, on which one or the other party can be stated to be aggrieved.
So, the High Court held that no appeal is maintainable as against a mere reference of certain issues by a Bench of the Customs, Excise and Service Tax Appellate Tribunal, to a Larger Bench.
But in this case, the Revenue had appealed against waiver of pre-deposit also. While no appeal is maintainable against an order referring a case to a Larger Bench, appeal is maintainable against an order waiving pre-deposit.
The High Court dismissed the Revenue appeal, but directed the Tribunal to constitute a Larger Bench at the earliest and dispose of the appeals within a period of two months from the date of receipt of a copy of its order.
Now, the issues are getting slightly more complicated.
Can the President reject the request of the Division Bench to refer the matter to a Larger Bench? Sitting in another Bench he has already opined (though prima facie ) that there was no conflict to refer to a Larger Bench. Technically he can ask the Division Bench to decide the issue, but the High Court has asked him to constitute the Larger Bench and the case is to be decided within two months!
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