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TMI Blog2015 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... t case the matter is not required to be referred to the Third Member for consideration. Therefore, it is quite necessary to answer the issue whether the goods are liable for confiscation under Section 111(d) read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 or not. Matters are required to be relisted for consideration of the issue whether the goods are liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 or not; thereafter, if required, to be referred to the Third Member to answer the reference. - Following decision of Suzlon Infrastructure Ltd. [2009 (5) TMI 64 - BOMBAY HIGH COURT] - Matter remanded back - Decided in favour of appellant. - C/304, 306 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to decide the said issue first and thereafter the difference of opinion be referred to the Third Member. To support this contention, he relied on the decision of Suzlon Infrastructure Ltd. - 2009 (243) E.L.T. 497 (Bom) = 2009 (15) S.T.R. 529 (Bom.). Therefore, it is prayed that before referring the difference of issue on points referred to the Third Member, the issue which has not been answered by this Tribunal be answered first. 4. On the other hand, ld. Special counsel appearing on behalf of the respondent opposed the contention of the ld. counsel for the applicants and submits that in this case if reference is answered by the Third Member, the issue which is not answered can be decided later on. Moreover, if the Third Member agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not change the final decision. 8. But in this case, there is every possibility that both the Members may come to the conclusion that goods are not liable for confiscation under Section 111(d) of the Customs Act, 1962. 9. We do agree with the reliance placed by the counsel for the applicants in the decision of Hon ble High Court in the case of Suzlon Infrastructure Ltd. (supra) wherein the Hon ble High Court has observed as under :- 6. The relevant portion of Section 129C of the Customs Act, 1962 reads as under : 129C. Procedure of Appellate Tribunal. - 1. The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof. 2. Subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red, to be referred to the Third Member to answer the reference. 11. In these terms, the application for Rectification of Mistake are allowed and Registry is directed to relist the matter for further consideration by this Tribunal on the above cited issue. (Pronounced in Court on 29-9-2014) [Order per : P.K. Jain, Member (T)]. - I have gone through the order recorded by my learned Brother. I would like to add as under :- 12. In the main case there are 9 appellants and ROM applications are filed by 6 applicants. It was argued that there are two issues. The first is relating to valuation and the second relating to confiscation under Section 111(d) of the Customs Act. Both the issues are relevant for three appellants (who are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by Sr. Counsel for the applicants in paras 12 to 14 elaborately discusses why the goods cannot be confiscated under Section 111(d) and penalty cannot be imposed. Generally while hearing ROM application, the matter is decided not only on the admissibility of ROM but also the order of rectification (if there is a mistake) is also made. In view of the said position as also the fact that the same was argued during ROM hearing as also in the written submissions submitted after the hearing (which was in addition to appeal) in my view there is not much need for again hearing the said issue. However, keeping in view of the fact that my learned Brother has suggested for listing of the matter by Registry, it is felt an earlier date say 7-10-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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