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Judgment
N. Kumar, J.—Sri N.R. Bhaskar, learned counsel is directed to take notice.
The assessee has preferred this appeal challenging the order passed by the Single Member of the Tribunal [2010 (251) E.L.T. 450 (Tribunal)] rejecting his claim for refund of Cenvat credit of Rs. 14,77,508/- on the ground that they have not utilized the credit on the inputs used in the manufacture of electric cars cleared for export and under bond during the period from 13-1-2005 to 16-9-2005 under Rule 5 of the Cenvat Credit Rules, 2005 read with Notification No. 11/2002-C.E. (N.T.), dated 1-3-2002 as amended. The grievance is that u/s 35-D it prescribes the procedure by which a Single Member of the Appellate Tribunal could not have decided the issue where the difference in duty is involved or the duty involved or the amount of fine or penalty interest exceed Rs. 10,00,000/-. In the instant case, the claim for refund of duty is Rs. 14,97,508/-. The impugned order is passed by the Single Member of Tribunal. Section 35D reads as under :-
35D. Procedure of Appellate Tribunal
(1) The provisions of sub-section (1), (2), (5) and (6) of section 129C of the Customs Act, 1962, shall apply to the Appellate Tribunal in the discharge of its functions under the Act as they apply to it in the discharge of its functions under the Customs Act, 1962.
(2) [omitted by Finance Act, 1995, w.e.f. 26-5-1995.]
(3) The President or any other member of the Appellate Tribunal authorised in 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 determination of any question having a relation to the rate of duty of excise or to the value o 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; or
(b) the amount of fine or penalty involved, does not exceed ten lakh rupees.
Therefore it is clear that a Single Member could not have disposed off the claim by the assessee which is one without jurisdiction. Hence, we pass the following order :-
(1) The appeal is allowed. The impugned order is set aside.
(2) The matter is remanded back to the Tribunal for fresh consideration and in accordance with law by a Bench consisting of minimum Two Members.
(3) The Tribunal shall restore the case to its original file and dispose off the appeal within three months from the date of receipt of copy of this order.
Sri N.R. Bhaskar, the learned counsel who was directed to take notice for respondent is permitted to file vakalath within four weeks.