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2010 (6) TMI 251 - HC - CustomsDifference of opinion - Reference to Third Member - member(judicial) allowed appeal on merit and limitation. Member (technical) dismissed appeal on merits. Matter referred to third member by stating whether appeal to be allowed or rejected. Entire appeal referred to third member by referral bench members instead of making statement referring point or point of difference. Held that - in the light of the decision of Colourtex v. Union of India - 2006 -TMI - 47622 - HIGH COURT OF GUJARAT AT AHMEDABAD, held that members of CESTAT not justified in referring entire appeal. Reference itself invalid. View of the third member not survived. Tribunal to decide appeal afresh.
Issues:
- Interpretation of Section 35D (1) of the Central Excise Act, 1944 and Section 129C(5) of the Customs Act, 1962 regarding reference of differing opinions within the Customs, Excise and Service Tax Appellate Tribunal. - Validity of referring the entire appeal instead of stating the point or points of difference between the dissenting Members of the Tribunal. Analysis: 1. The case involved an appeal under Section 35G of the Central Excise Act, 1944 challenging an order made by the Customs, Excise & Service Tax Appellate Tribunal (the Tribunal). The dispute revolved around the denial of Small Scale Exemption to the respondent for using the brand name of other persons in their business activities. 2. The Tribunal comprised of a Member (Judicial) and a Member (Technical) who expressed differing opinions on the appeal. The Member (Judicial) allowed the appeal, granting relief to the respondent, while the Member (Technical) dismissed the appeal. Due to this difference in opinion, the matter was referred to a Third Member for resolution. 3. The Third Member concurred with the findings of the Member (Technical) on the merits of the case but noted the absence of a divergent opinion on the limitation aspect. The Third Member held that the demand was barred by limitation and sent the matter back to the Referral Bench for further action. 4. The appellant argued that the reference to the Third Member was flawed as the Division Bench did not specify the point of difference between the Members, leading to confusion in decision-making. The appellant contended that the Third Member's observation on limitation was incorrect given the lack of clarity in the referral process. 5. The High Court analyzed the legal provisions under Section 129C(5) of the Customs Act, 1962, emphasizing the requirement for dissenting Members to state the point or points of difference for a valid reference. Referring to the Colourtex case, the Court highlighted the necessity of a clear statement of differences for a valid referral. 6. The Court concluded that in this case, the reference of the entire appeal instead of specifying the points of difference was invalid. Citing the Colourtex case, the Court held that dissenting Members must articulate the specific points of disagreement, and referring the entire appeal was not justified. 7. Consequently, the High Court allowed the appeal, quashed the impugned order by the Tribunal, and set aside the "Difference of opinion" recorded. The case was remanded back to the Tribunal for a fresh hearing and decision in accordance with the law, emphasizing the importance of clarity and specificity in stating differences for valid references within the Tribunal.
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