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TMI Blog2016 (2) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ints out that because of the difference in opinion between Member (Judicial) and Member (Technical) the Hon'ble President nominated the Third Member Shri P.K. Jain, Member (Technical) to resolve the difference of opinion. This application is filed seeking rectification of the mistake that has crept in the framing of the questions referred to the Hon'ble Third Member which is reproduced below :- "The evidence produced by the Revenue is not sufficient to establish the fraudulent availment of credit by the appellant and consequently the demand of duty should be set aside and penalties are not imposable as held by Member (Judicial) OR Whether the evidence produced by the Revenue establishes wrongful availment of Cenvat credit and consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from the applicant's possession and the invoices received at the Octroi Naka in the name of M/s. National Block; b. In respect of credit pertaining to 29,343 kgs. of Aluminium Sections/Profile purchased from M/s. Shreeji Aluminium P. Ltd. (SAPL for short) - Statement of Mr. Paresh Patel, Managing Director of SAPL; - Statement of Mr. Guru R. Guthyal, Manager of M/s. B.S. Patel Roadways; - Statement of Mr. Gururangappa, Managing Director of M/s. B.S. Patel Roadways; - Statement of Dinesh Ramnarayan Yadav, Accountant of the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 497 (Bom.) = 2009 (15) S.T.R. 529 (Bom.). On the issue that the two Members hearing the appeal must make a statement referring the point of opinion on each evidence, he relied on CCE v. Jagat Texturising - 2010 (20) S.T.R. 564 (Guj.) = 2010 (255) E.L.T. 353 (Guj.) and on Suzlon Infrastructure Ltd. - 2009 (243) E.L.T. 497 (Bom.) = 2009 (15) S.T.R. 529 (Bom.). 4. Ld. Commissioner appearing for the Revenue opposes the application and states that for rectification of mistake the mistake must be obvious. In the present case, the question framed for reference is clearly set out for decision, i.e., whether evidence produced by Revenue is sufficient to establish the fraudulent availment of credit. 5. Having considered the rival contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtex (supra) the point of difference which was referred was : "Whether the appeals are required to be rejected as held by Member (Technical)? OR Whether the appeals are required to be allowed as held by Vice-President?" The Hon'ble High Court held that the two Members must state the points on which they differ. 5.1 We find the situation in the present case is different. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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