By TIOL News Service

NEW DELHI, SEPT 09, 2015: THE dispute involved is whether the appellant is eligible for CENVAT Credit on Telecom Towers. During the course of extension of Stay already granted, the appellant stated that in another case (the case of Idea Mobile) involving the same issue viz. availability of CENVAT credit in respect of telecom towers, there has been a difference of opinion between the Members of the Division Bench and the matter is put up to the Hon'ble President, CESTAT for referring the matter to 3rd Member/Larger Bench. The appellant has pleaded that although vide the Misc. applications, it has only requested to adjourn the hearing and allow it to be an intervener in the case of Idea Mobile, as an intervener, it will not be able to argue the matter on facts and therefore instead of referring the difference of opinion to a 3rd Member, the President may constitute a Larger Bench of three Members which could consider the difference of opinion as well as these appeals. The appellant also pleaded that the President has full powers to constitute such a Bench and relied on some earlier decisions.

After considering the submissions on both sides, the Tribunal observed:

It is evident from the language of sub-section (5) of Section 129C that in case of difference of opinion, the President can refer the case for hearing on such point of difference by the one or more of the other Members of the Tribunal. It clearly means that the difference of opinion in a Division Bench need not necessarily and always be referred only to a single 3rd Member.

From the two judicial pronouncements in the cases of Dawoodi Bohra Community (2005) 2 Supreme Court Cases 673 and Paras Laminates Pvt Ltd. - 2002-TIOL-48-SC-CUS there remains no doubt that the President of CESTAT has full discretion/power regarding framing of roster, constitution of benches and directing any particular matter to be placed for hearing before any particular bench of any strength.

In the present appeals the issue involved is the same as that involved in the case of Idea Mobile which the Ld Member of Division Bench expressed a difference of opinion which is to be resolved. If that matter is referred to a 3rd Member, then these appeals will not be able to be tagged therewith and as an intervener, the appellants will not be able to argue the question of fact. In these circumstances, it will be more efficient if the difference of opinion is heard by a 3 Member Larger Bench in which case these appeals can also be heard by the same Bench. Accordingly, it is decided that these matters should be placed before the President with a request that the difference of opinion in the case of Idea Mobile may be referred to a Larger Bench of 3 Members and these appeals should be allowed to be tagged therewith to be heard by the same Larger Bench.

(See 2015-TIOL-1895-CESTAT-DEL)