ASIAN RADIATORS Vs. CEGAT

JUDGEMENT

(1.) The appellant is a partnership firm. The respondents clubbed all the three units of the firm assuming that two of the three were dummy units of the appellant and a common show cause notice was issued proposing to demand differential duty and penalty from the appellant by clubbing the value of clearances of all the three units. According to the appellant, there was no evidence to show that the three units are managed by one and there is no reason for clubbing. The appellant preferred an appeal and the matter was heard by the first respondent consisting of two members, viz. The Vice-President and the Judicial Member. Each of them differed on the issue of clubbing. Therefore, the matter was referred to a third Member. The third Member (Taxation) took up the matter and dealt with the issue. He then, after hearing and discussing the entire matter which was referred to him, held " In view of these discussions, I most humbly support the order of the Hon'ble Member and most respectfully beg to differ from the order of the Hon'ble Vice-President on the two points referred to me for consideration."

(2.) In the present case, the Member and the Vice-President who differed with each other, have signed the order on 6-5-1997. The opinion of the third Member has also been signed. Thereafter, the point was decided on the basis of the majority opinion and orders were pronounced in open Court on 30-6-1998 by a two Member Bench. This Bench consisted of the Member (Taxation) and another Member (Judicial). The two members who were parties to the said original Bench, had retired in the mean time. The only submission of the appellant before the learned single Judge was that as the Members of the original Bench who delivered separate differing judgments are not available, the entire matter is required to be heard de novo in view of the specific provision of Section 129C(5) of the Customs Act. Sub-section (5) of Section 129C reads as follows :

(3.) The learned single Judge, following the decision of this Court in State by Public Prosecutor V/s. Arumugham and 12 others, 1989 LW(Cri) 519, the decision of a Full Bench of Madhya Pradesh High Court in ( Firm Ladhuram V/s. K.U.M.Samiti, 1978 AIR(MP) 10 ) and the decision of Lahore High Court in ( Royal Calcutta Turf Club V/s. Lala Kishan Chand, 1943 AIR(Lah) 84), held in Paragraphs 12 and 13 as follows :