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TMI Blog2017 (1) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... arisen whereby it would not be possible to give effect to the provisions of sub-Page section (5) of section 129C of the Act. The impugned order of the Tribunal to the extent the same relates to the question of imposition of penalty on M/s. Modern as recorded in the difference of opinion between the members is hereby quashed and set aside. The Tribunal is directed to hear the appeal afresh to the aforesaid limited extent without in any manner being influenced by any observations made by the Members in the impugned order. Petition allowed - matter on remand. - Special Civil Application No. 17102 of 2016 - - - Dated:- 13-12-2016 - Harsha Devani And A. S. Supehia, JJ. Mr Uday Joshi, Advocate, for M/s Trivedi Gupta, Advocate for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , adjudicated upon the said show cause notices, by which the first two show cause notices came to be confirmed, whereas the third show cause notice came to be dropped. 2.4) The aforesaid OrderinOriginal, was challenged by way of filing Appeals before the Tribunal. A common hearing of the said appeals filed by the unit and coappellants took place before the Tribunal, which, after hearing the concerned parties, passed an Order No.10/1216/ 2016 dated 21.01.2016 wherein, a difference of opinion arose between the Member (Judicial) and the Member (Technical). Vide said order, the Member (Judicial) set aside imposition of penalty imposed on the unit pertaining to show cause notice No.V.CH54( 15)23/RV/ DHalol/ Commr/ 2004 dated 19.09.2004 amongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Learned Advocate, Ms.Avani Mehta has urged that no interference of this Court is called for as the Order dated 21.01.2016 is in accordance with law. She has submitted that as such the said order contains the points of difference and also satisfies the requirements of provisions of Section 129C(5) of the Act. (6) As can be seen from the order dated 22.01.2006, the members of the Tribunal have stated the points of difference thus: (i) Whether with regard to the show cause notice dated 19.09.2004, the penalty imposed on M/s. Modern Petrofils is to be set aside and the penalty on M/s. Filatex India is to be reduced to ₹ 1,00,000/as held by the learned Member (Judicial) or the penalties imposed on M/s. Modern Petrofils and M/s. Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differ and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of these members of the Appellate Tribunal who have heard the case, including those who first heard it Though Sec. 129C of the Act is described as pertaining to 'Procedure of Appellate Tribunal' when subsection (5) of the said Section is read, it becomes apparent that it is a substantive provision, and not merely procedural. The provision provides not only for stating point or points of difference and for making a reference, but after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumbent upon such members to set out the point or points on which they differ. Upon such point or points of difference being stated a reference is required to be made to the President who, on the administrative side, is required to pass an order for placing the case for hearing either before himself or before any other member or other members, as the facts and circumstances of the case may require, but the case, upon such a reference being made, can be heard by the President or the Member or Members only on the point or points of difference stated by the original Bench which heard the appeal. The President or the Third Member does not derive any independent jurisdiction and has no powers to decide the appeal in entirety. 18 The legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point or points on which the members have differed. The present case would therefore stand squarely covered by the above decision. (9) Furthermore, it may be noted that on account of lapse of time, the members who rendered the earlier order have now retired and hence, even if the matter is referred back to the Tribunal for stating the points of difference, it would not be possible. This Court in the case of Colour tex (supra) has held that by no stretch of legal ingenuity, can one read and interpret the provisions to mean the even in the absence of a Bench, only one of the Members who originally constituted the Bench, can state the point or points of difference and make a reference to the President. In the present case, as noted hereinab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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