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TMI Blog2015 (9) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by Member (Judicial) or Such benefit is not available and penalties are imposable under Section 76 and 78 of the Finance Act, 1994 as held by Member (Technical) - Application No. ST/ROM/94258/15, Appeal No. ST/672/11 - - - Dated:- 10-9-2015 - Anil Choudhary, Member (J) And P S Pruthi, Member (T) For the Appellant : Shri A R Krishnan, Adv For the Respondent : Shri K M Mondal, Spl. Counsel ORDER Per Anil Choudhary Applicant/Appellant have filed the present modification application seeking rectification of mistake in Order No. M/2599/15/STB dated 5/6/2015 in Appeal No. ST/672/11, wherein there was different of opinion and the same was referred for opinion of the Third Member. 2. Heard the parties. 3. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench was challenged. The question referred by Division bench was whether the appeals are required to be rejected as held by learned Member (Technical) or whether the appeals are required to be allowed as held by the learned Vice-President (Judicial Member). The Hon'ble High Court took notice of the provisions of section 129C of the Customs Act, 1962, and observed that the Legislative intent is to ensure that the appeal or appeals are to be disposed of only by the Bench originally assigned. The appeal or appeals as ordered by the learned Vice-President, is on administrative side. The Legislative intent is clear that after the third Member renders his opinion, the appeal goes back to the Bench which originally heard the appeal, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of the application before the third Member, it is open to an aggrieved party to apply for rectification. The difference of opinion would not constitute a decision. Under Section 35C, the power is to amend the order, to rectify any mistake apparent from record. The Members of the Tribunal can only pass orders. If there is difference in the opinion nevertheless those orders would not seize to be order. These orders, however, are not enforceable order. Under Section 129C (5), what is to be referred is difference of opinion on points among Members. On points being answered by third Member, the points of difference would be answered in terms of the majority opinion of the Judges. In such event, one of the two judgments would be the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax? Findings:- It is held that the contract for services was entered into outside India, the services have been received outside India and further the resultant loan was also received outside India and its utilization also made outside India. As such, it is held that the Arrangement services were provided beyond the Indian Territory and hence, the arrangement services would not be liable to Service Tax under the Finance Act, 1994. 6.2 Issue (ii)- Whether the demand of ₹ 2,82,88,914/- prior to 18.4.2006 on arrangement fees would not be payable? Findings:- On this issue, I agree with my brother learned Technical Member that the said amount relating to the period prior to 18.4.2006 on Arrangement Fee, would not be taxable u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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