INSTRUMENTATION LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) BY this application purportedly filed as an application for rectification of mistake under Section 35C(2) of the Central Excise Act, 1944, the applicant in effect and substance seeks review of the stay order dated 25 -4 -2008 on the ground that while dealing with an identical issue in the case of Alstom Projects India Limited, a Bench of this Tribunal vide order dated 19 -6 -2008 granted full waiver of pre -deposit. In course of hearing it was also submitted that the applicant had inter alia placed reliance on three Member Bench decision of the Tribunal in the case of Jyoti Limited v. CCE, Vadodara , which was not taken into consideration.

(2.) WE may clarify here that the decision in jyoti Limited was rendered by a third member of difference of opinion between two Members. Strictly speaking therefore, it may not be said to be a decision of a three Member Bench. However, our attention in this regard, was drawn on decision of the Delhi High Court in the case of P.C. Puri v. Commissioner of Income Tax, Delhi -II -, wherein it has been held that where a case is decided on difference of opinion by third Member it would amount to decision by a three Member Bench. Be that as it may, we are of the view that a speaking order having been passed, after full hearing, rightly or wrongly, the remedy of the applicant was/is by way of a writ petition, if so advised, in the High Court, and the subsequent order of the co -ordinate Bench cannot be a ground for review of the order. In the circumstances, we reject the application.