1. This is an application for reference under Section 35G of the Central Excises and Salt Act, 1944 filed by the Collector of Central Excise, Madras in respect of the order of the Tribunal dated 13-12-84 and made in Appeal No. ED (T) (MAS) 60/82. The learned Senior Departmental Representative submits that when a two-Member Bench of the Tribunal has taken a view and if a single Member has not followed it, it would be a question of law meriting reference to the High Court. In the instant case, the learned SDR submitted that in respect of the applicability of Section 11IB of the Central Excise Act retrospectively, the Tribunal in a Bench case in A. No. 128/83, dated 20-7-83 relating to M/s. Ashok Leyland Limited, Madras (1983 E.L.T.2523), has held that the period of limitation prescribed under Section 1 1B is one indicative of public policy and cannot be ignored by the Collector in exercising the powers of relaxation under the proviso to Rule 12 of the Central Excise Rules, 1944.
2. It was further urged that the ratio decidendi in the Supreme Court case reported in 1964, 5 SCR 836 in the case of C. Beepathumma and Ors.
is applicable to the facts of the case and the Limitation Act being procedural in nature is applicable retrospectively and the Tribunal in the order has found that the limitation under Section 1 1B is inapplicable and this would be a question of law for reference.
3. Finally, the third point that was raised by the learned SDR was that the powers exercisable by the Collector in the matter of condonation of delay cannot be exercised by the Tribunal and this would also be a matter for reference to the High Court under law.
4. So far as the first submission of the learned SDR is concerned, I should confess the same was not brought to my notice and apart from this, it is a settled proposition of law that even if a judgment had been rendered by a Court or a statutory Tribunal per incuriam, the finding of the Tribunal: even if it is erroneous, would not be a matter for 'reference under law. It would be seen that the Bench ruling by the Tribunal referred to and relied upon by the learned SDR would in categorical terms Rule out any power of discretion on the part of the Collector to condone the delay in export resale claim. In the instant case, it is contended by the learned SDR that the Collector has powers to condone the delay in the presentation of the application for rebate claim. The Tribunal in the order, out of which the reference arises, has taken for granted and assumed that the Collector of Central Excise has powers to condone the delay in the presentation of rebate claim by the parties without going into and examining the legality of the same and proceeded to exercise such discretionary power of condonation in favour of the party. The question as to whether the Collector himself is empowered to condone the delay was neither canvassed nor considered in the order of the Tribunal in question. Apart from it, the fact also remains that the Bench ruling of the Tribunal was not brought to my notice when Appeal No. 60/82 referred to supra was decided by the Tribunal. Therefore, without going into the question with reference to the binding nature of a two-Member Bench Ruling on a single-Member Bench, as the issue is purely academic in the present case and as the same does not arise for consideration, in the instant case, I find that the finding of the Tribunal, even if it is erroneous, would not be a matter for reference as a question of law to the High Court. The second submission of the learned SDR that the powers exercisable by a Collector in condoning the delay in the presentation of the rebate claim by a party would not be exercisable by the statutory Tribunal is not legally tenable and it is a settled proposition of law that the statutory Tribunal constituted as an appellate body would be competent to exercise the powers of condonation if an adjudicating authority like the Collector of Central Excise is clothed with such discretionary powers. I therefore, do not find any question of law meriting such reference in this regard as well.
5. The third submission of the learned SDR that law of limitation being procedural is retrospectively applicable to a given situation would run counter to his earlier submission with reference to the powers of condonation exercisa-ble by the Collector. If the period of limitation prescribed under Section 11B of the Act is retrospectively applicable, it does not stand to reason how the Collector of Central Excise could purport to exercise any power of discretion in the matter of condonation of the delay in the rebate claim preferred by the party as he did in this case though against the party. Even though procedural law is generally retrospective in operation if an amendment to a procedural law makes vital inroads into the substantive and accrued rights of the person in such a situation unless the law is made retrospectively applicable by express provision or by necessary implication, Courts have consistently taken the view that it would not be retrospectively applicable. Be it that as it may, this question is purely academic in the factual background of this case. On a consideration of all the submissions of the learned Senior Departmental Representative, I am of the opinion that no question of law emanates out of the order of the Tribunal referred to supra meriting reference to the High Court. The Reference Application is, therefore, rejected.