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TMI Blog2006 (1) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... s back to the Bench which originally heard the appeal and has to be decided in accordance with the majority opinion. This becomes absolutely clear when the concluding portion of the provision is read which talks of deciding according to the opinion of the majority of the members who have heard the case, including those who first heard it. Therefore, the members who expressed dissenting opinions are bound by the statute to state the point or points of difference and make reference after making such a statement. To use the words of the learned President an omnibus order cannot take place of the statement on point or points of difference between the members. The entire appeal(s) cannot be referred. As the facts go to show the petitioner had moved an application before the learned President of the Tribunal. The Registry at New Delhi took it upon itself to direct the petitioner to approach the Bench at Mumbai without appreciating the controversy which was raised by the petitioner and on which it sought an order from the President pursuant to the oral directions made by this Court. Once the application was addressed to the President the Division Bench could not have taken up the said app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2003 vide Order-in-Original made by respondent No. 2 redetermining the FOB value of the exports and consequent reduction in DEPB credit, the petitioner was held to be not entitled to the originally granted credit. The said order came to be challenged by way of an Appeal before CESTAT. On 12-8-2005 the Division Bench comprised of Vice-President and Member (Technical) heard the appeal and both of them expressed differing opinions : The Vice-President allowed the appeal filed by the petitioners while Member (Technical) rejected the appeal. Thereupon both of them made reference stated to be in terms of provisions of Section 129C(5) of the Customs Act, 1961 (the Act). The order making the so called reference reads as under : The following difference of opinion is placed before the Hon'ble President for reference to Third Member for resolving the difference :- 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 Sd/- (Moheb Ali M.) Member (Technical) Sd/- (Jyoti Balasundaram) Member (Technical) 4. The difference of opinion was accordingly referred to the President of CESTAT who assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Special Civil Application No. 21526 of 2005. On 24-10-2005 the Court permitted the petitioner to withdraw the petition and made the following order : 1. Mr. K.B. Trivedi, learned Senior Advocate appearing on behalf of the petitioners, seeks permission to withdraw the petition, so as to enable the petitioners to approach the learned President of Customs, Excise and Service Tax Appellate Tribunal so as to seek a direction to the Bench which originally heard the appeal to state the point or points on which there is a difference of opinion between the members constituting the Bench in light of requirements of provisions of Section 129C(5) of the Customs Act, 1962. During the course of hearing reliance was placed on decisions of Patna High Court in the case of Hanutram Chandanmul v. Commissioner of Income-tax, Bihar Orissa, [1953] XXIII-.ITR 505 (Patna) and Karnataka High Court in the case of Joint Commissioner of Income-tax (TDS) v. Jindal Tractbel Power Co. Ltd. Anr., [1999] 240 ITR 189 (Kar.) in support of the proposition that the Third Member cannot proceed with the hearing, if the questions are not framed on which there is a difference of opinion. Reliance was also placed on d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently reduced. On each of these issues, the Vice-President has expressed a diametrically opposite view. Therefore, the difference as framed has a bearing only on these issues. It is, therefore, very clear that the third Member is only required to concur with the findings either of the Member (Technical) or of the Vice-President on all the above issues. An occasion to reframe the question may arise in a case where there is ambiguity in the question referred. However, in the present case the difference as framed is clear, unambiguous and unequivocal, and therefore occasion for reframing the same does not arise. 10. It is in the aforesaid backdrop of facts and circumstances of the case this petition has come up before this Court. When the matter came up before the Court on 19-12-2005 the Advocate of the petitioner was orally directed by the Bench to approach the learned President of the Tribunal personally to ensure that provisions of Section 129C(2) of the Act are complied with by the Division Bench of the Tribunal. 11. On 6-1-2006 the Registrar, CEGAT, New Delhi has addressed a communication to the petitioner with copy endorsed to Registrar General of the High Court. In the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application. Submissions : 13. Mr. K.B. Trivedi, appearing on behalf of the petitioner, after narrating the aforesaid sequence of facts and events submitted that in light of the judgment of Patna High Court in the case of Hanutram Chandanmul (1953) 23 ITR 505 the order dated 6-12-2005 made by Division Bench of the Tribunal and the reference should be held to be bad in law and the Bench be directed to make a proper reference. He also placed reliance on the Apex Court decision in the case of Commissioner of Income Tax v. Anjum M.H. Ghaswala and others (2002) 1 SCC 633 with special reference to the observations in paragraph No. 27 at page 644 of the reports to submit that once an authority is required to act in a particular manner or exercise its jurisdiction in a manner stipulated by the provisions, the authority was bound to act accordingly and could not deviate from doing so. During course of hearing attention was also invited to the submission made on behalf of the revenue before the Tribunal to the effect that the Tribunal had always been adopting this course of action while making reference and no error had been committed in the reference made. 14. As against that Mr. R.J. Oza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference in a case where the Members of the Bench are equally divided with powers to undertake such a hearing, which is not a hearing of the appeal or appeals. 16. Section 129C(5) of the Act requires that where Members of Tribunal differ in opinion on any point, in the first instance, the point shall be decided according to the opinion of the majority; only in the event where the Members are equally divided, the Members are obliged to state the point or points on which they 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 Tribunal, and such referred point or points shall be decided according to the opinion of the majority of these members who have heard the case, including those who first heard it. 17. The provision is therefore comprised of two parts. In a case where the Bench consists of two or more than two members and there is difference of opinion amongst the members who constitute the Bench, the point of difference has to be decided according to the opinion of the majority, where there is a majority. While the latter part of the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In a given case, and it is not unknown that, though the members may express dissenting views they might ultimately arrive at the same conclusion, or there could be a situation where by a different process of reasoning the same conclusion may be arrived at by the members constituting the Bench. In such a case there would be no point or points of difference on which a reference could be made, though there might be a different line of reasoning adopted by each of the members constituting the Bench. The decision in case of A.N. Seth (supra) on which reliance has been placed on behalf of respondent No. 2 is an illustration of such an eventuality. As can be seen from the facts recorded at page 856 of the reports though both the members took different views ultimately both the members agreed that the intention of the assessee (in that case) at the time of sale of plots was to sell the land with a view to earn the profits and that the gains were liable to be taxed as revenue income. In fact the appeals were allowed by the Tribunal and there was no difference of opinion stated for reference to the President. The second question which was there before Delhi High Court was in the context o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for hearing and hence the order dated 6-12-2005 is also bad in law on this limited count. The Registry of the Tribunal may be manned by highly competent officers but there are situations where in the peculiar facts of the case, it is necessary to place the application before the authority for whom it is meant and to whom it is addressed, as in this case before the learned President. If that was done, at a proper stage, possibly the litigation could have been avoided, at least this round. As can be seen from the prayer made in the application, which reads as : (a) that the order of reference to the Hon'ble Third Member be recalled and thereafter, to refer the matter sack to the Two Hon'ble Members for stating the point or points on which they differ and thereafter, refer the matter to the Hon'ble Third Member . The same could have been granted by the learned President only and therefore also the members of the Bench could not have taken up for hearing and disposal, the application addressed to the learned President. 23. In the aforesaid facts and circumstances of the case, not only the order dated 6-12-2005 (Annexure-A) made by CESTAT but also the so called reference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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