2016 (2) TMI 211 - AT - Central Excise

Rectification of mistake - difference in opinion between Member (Judicial) and Member (Technical) the Hon ble President nominated the Third Member (Technical) to resolve the difference of opinion - Whether the evidence produced by the Revenue establishes wrongful availment of Cenvat credit and consequently demand of duty and imposition of penalties is sustainable as held by Member (Technical)? - Held that - In the present case, the question referred to the Third Member above, is very clear. What has been referred for opinion of the Third Member is whether the evidence produced is sufficient to establish fraudulent availment of credit. It is not brought out by the counsel that the two Members had agreed on the sufficiency of some evidence and disagreed on some other evidence. The issue is to be decided in the present case cannot be compared to the issues which were under consideration in the judgments cited by the ld. counsel. The Member (Judicial) held that the evidence produced by Revenue is not sufficient whereas Member (Technical) held that the evidence produced is sustainable. One Member may look at the evidence from a certain perspective whereas the other Member may look out the same evidence from different perspective. But the fact is that both the Members have given a definite conclusion based on the evidence on record. There is no finding in the order that a certain evidence was accepted by one Member and not accepted by other Member. Therefore, it is clear that a definite opinion has been framed by each of the Members. There being difference in opinion, the matter was appropriately referred to for nomination of the Third Member. It is up to the Third Member to agree entirely with one of the two Members or to agree partly with either Member depending on his appreciation of various pieces of evidence. The ROM appears to be a little far fetched. If the reasoning of the counsel were to be accepted in cases of evasion, it would lead to a conclusion wherein hundreds of pieces of evidence, the opinion of each Member would need to be expressed on each piece of evidence in the difference of opinion. This is neither practical nor the intention of the law. ROM application is dismissed.

Summary

Issues:
Rectification of mistake apparent from record in the framing of questions referred to the Third Member.

Analysis:
The judgment revolves around a miscellaneous application filed seeking rectification of a mistake apparent from the record in an earlier order. The application arose due to a difference in opinion between Member (Judicial) and Member (Technical), leading to the nomination of a Third Member to resolve the disagreement. The crux of the matter lay in the framing of questions referred to the Third Member, specifically regarding the sufficiency of evidence to establish fraudulent availment of credit. The counsel for the appellant argued that separate questions should have been framed for each credit availed, as detailed findings were provided by both Members on various evidence during the appeal hearing.

The appellant's counsel contended that the Third Member might agree with one Member on certain evidence and with the other on different evidence, necessitating separate questions for each credit availed. The argument was supported by references to legal precedents such as Colourtex v. UOI and Suzlon Infrastructure Ltd. v. UOI. Conversely, the Revenue opposed the application, asserting that the question framed for reference was clear and did not warrant rectification. The Tribunal analyzed the arguments presented, distinguishing the current case from the cited precedents. It emphasized that both Members had given definite conclusions based on the evidence, leading to a legitimate difference in opinion and the subsequent referral to the Third Member.

The Tribunal dismissed the rectification of mistake (ROM) application, highlighting that the counsel's reasoning, if accepted, would necessitate expressing opinions on numerous pieces of evidence in cases of evasion, which was deemed impractical and not aligned with legal intent. The judgment concluded by upholding the decision to dismiss the ROM application, emphasizing the clarity of the question referred to the Third Member and the appropriateness of the referral in light of the differing opinions expressed by the original Members.