2006 (4) TMI 67 - HC - Central Excise

Ambiguous decision by tribunal - difference of opinion amongst two members of the bench so matter referred to third member - Upon receipt of the opinion of the third member, the disposal of the appeal by the bench that the appeal is allowed as remanded is highly ambiguous - scope of remand is not clarified - order of third member is beyond the scope of reference - members of the Tribunal not considered the appeal with clarity appeal is restored to the file of the Tribunal for fresh hearing

Summary

Issues involved:
1. Difference of opinion among bench members regarding remand and jurisdiction of the third member.
2. Ambiguity in the order of remand and scope of remand.

Analysis:

Issue 1: Difference of opinion among bench members
The case involved a dispute where two members of the bench had differing opinions on whether the activity carried out by the appellant constituted "manufacture" under the Central Excise law. One member confirmed the duty demand but set aside the penalty, while the other member believed the matter needed to be remanded to determine the manufacturing aspect. The third member, to whom the matter was referred, took a different stance, focusing on recomputation of assessable value and duty amount rather than the manufacturing aspect. The original bench, upon receiving the third member's opinion, allowed the appeal as remand. However, it was held that the third member overstepped his jurisdiction by going beyond the question referred and taking a view different from both bench members. The order of remand was deemed ambiguous due to lack of clarity on the scope - whether it was for recomputation or for determining the manufacturing aspect.

Issue 2: Ambiguity in the order of remand
The judgment highlighted that the disposal of the appeal by the bench was highly ambiguous, failing to clarify the scope of remand. If the remand was intended for recomputation, it was considered bad-in-law as it exceeded the scope of reference. On the other hand, if the remand was for the adjudicating authority to consider the manufacturing aspect, the order should have explicitly stated so instead of leaving it open for interpretation. The Tribunal members were criticized for not considering the appeal with clarity and for confusing the issues. As a result, the appeals were to be heard afresh by a different bench to ensure a fair and clear assessment in accordance with the law.

In conclusion, the judgment addressed the issues of differing opinions among bench members, the jurisdiction of the third member, and the ambiguity in the order of remand. It emphasized the importance of clarity in legal proceedings and the need for precise directives to avoid confusion and ensure a fair hearing.