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TMI Blog2019 (12) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... t or points on which they differed to a Third Member or in the alternative the matter may be directed to be heard by another Bench. HELD THAT:- In paragraph 10 of the judgment, it has been noted that the Counsel for the petitioner was orally directed by the Bench to approach the President of the Tribunal to ensure that the provisions of Section 129C of the Act were complied with by the Division Bench of the Tribunal. The President observed that Section 129C(5) mandatorily requires, if the Members were equally divided, to frame the point or points on which they differed, but felt handicapped in making any order. The Division Bench, thereafter, observed that the Members who expressed dissenting opinion, were bound by the statute to state the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial) or it should be allowed as held by Member (Technical)?" 3. The respondent - M/s. Sun Tex filed a Writ Petition in the Bombay High Court being Writ Petition No. 14126 of 2019 to challenge the reference order dated 22 January, 2019 alleging that specific 'point or points' on which the Members differed were required to be recorded while making the reference to a Third Member, in view of the specific provisions contained in Section 129C of the Customs Act, 1962 (the Act). 4. This miscellaneous application has been submitted before the President with a prayer that the Bench referring the matter should have specifically stated the 'point or points' on which they differed to a Third Member or in the alternative the matter may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differing Members, i.e. Member (Judicial) and Member (Technical), should frame opinion in the form of question of law and such questions should alone be referred to the Hon'ble Third Member, various arguments were advanced, taking support of the following provisions of law and judgments (compilation submitted) : 1. Section 129C of Customs Act, 1962 2. Jagat Alloys Pvt. Ltd. - 2016 (335) E.L.T. 406 (Bom.) 3. Colourtex - 2006 (198) E.L.T. 169 (Guj.) 4. Amod Stampings Pvt. Ltd. - 2013 (289) E.L.T. 421 (Guj.) 5. Jagat Texturising - 2010 (255) E.L.T. 353 (Guj.) (b) It was also submitted that law is settled by the Hon'ble Bombay High Court as well as Hon'ble Gujarat High Court and, hence, the Referral Bench of Hon'ble Tribunal has er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y approach the High Court. 6. It was also submitted before the Hon'ble High Court that the matter listed before the Third Member has been adjourned on the ground that the matter has been taken to the Hon'ble High Court and is sub-judice. 7. Under these circumstances, the Applicants are now approaching the Hon'ble President with a humble prayer to direct the Referral Bench to frame relevant question/s of difference of opinion to be decided by the Hon'ble Third Member, instead of referring the entire appeal to the Third Member or alternatively the matter may be heard by another bench." 6. It is seen that paragraph four of the application mentions that while hearing the Writ Petition filed by Sun Tex to assail the reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel submitted that the Division Bench was required to specifically state the point or points on which there was a difference, but the manner in which the points have been framed indicates that the entire appeal would have to be heard by the Third Member, which would not only be contrary to the provisions of Section 129C(5) of the Customs Act, but also contrary to the aforesaid decisions of the High Courts. 10. Learned Counsel, therefore, submitted that the President may send the matter back to the Division Bench for formulating specific 'point or points' on which the Learned Members differ so that only such point or points can be referred to a Learned Third Member. 11. Shri Rakesh Kumar, Learned Authorised Representative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. The difference of opinion on facts noted should be referred specifically and a question or questions arising on that difference of opinion alone should be referred to the Third Member. If the entire appeal is to be heard afresh, then, that would not be conducive for effective and proper adjudication. Ultimately there has to be an element of certainty and finality to a litigation. None should be allowed to take chances or have a rehearing of the proceedings before the same Court. 15. In Colourtex, the following difference of opinion was placed before the President for reference to a Third Member by the Division Bench : "Whether the appeals are required to be rejected as held by Member (Technical)? OR Whether the appeals are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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