ZENITH COMPUTERS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) BY this appeal the appellant challenges the order passed on 1 -11 -2012 (2014 (34) S.T.R. 581 (Tribunal)) by the Customs, Excise and Service Tax Appellate Tribunal West Zonal Bench at Mumbai (for short "CESTAT"). Mr. Patil, learned Counsel appearing on behalf of the appellant submits that this appeal raises substantial questions of law and particularly as framed at Paragraph 25 of this Memo of Appeal.

(2.) IT is submitted by Mr. Patil that the situation in this case is peculiar and common to the proceedings before the Tribunal particularly when the Tribunal consisting of Member (Judicial) and Member (Technical) do not agree on the final order to be delivered. There is difference of opinion, that difference of opinion is also on facts. Even if the difference of opinion is with regard to a factual matter, a reference is necessitated to a third member. In the present case, there is a peculiar situation inasmuch as the appellant was forced to file an application invoking the powers of the Tribunal to rectify the mistake appearing in the original order. That mistake was pointed out in great details by the appellant before the Tribunal. The appellant pointed out that when the original order was delivered, the Member (Judicial) took a particular view on the merits of the case. The Member (Technical) in his separate opinion not only differed on the merits of the case but also held that the demand is not hit or barred by limitation. There was an opinion expressed even on this point. The Member (Technical) thus expressed a view that the extended period of limitation has rightly been invoked. Mr. Patil submits that it is pertinent to note that the Member (Judicial) has not expressed any opinion on this aspect of the matter. Yet, while formulating the question or opinion for answer by a Third Member, the Tribunal has framed that in the following manner: -

(3.) ON the other hand, Mr. Jetly learned Counsel appearing on behalf of the Revenue submits that the appeal is entirely premature. Today the matter has not attained finality. Though it is true that there is difference of opinion on factual matters between the Member (Judicial) and Member (Technical), but a reference has been made to a Third Member and which is pending. In the event the Third Member agrees with the Member (Judicial), then, the appellant is bound to succeed because the issue will be answered in the terms of the opinion of majority. In the event, the Third Member agrees with the Member (Technical), then, the original order would stand and opinion of majority would be of dismissal of the appellant's appeal. In that event, the appellant has remedy to challenge the order of the Tribunal in accordance with law. At this stage this Court should not express any opinion, particularly, by entertaining this appeal. Mr. Jetly submits that expressing any opinion even on the maintainability of the application of rectification of mistake would mean answering the issue in the pending reference, either way. That would not be fair to both sides. Even otherwise, he submits that the law is well settled. Whenever there is a provision incorporated, enabling the Tribunal which is exercising an appellate power to express a difference of opinion on any point, then, that term/word must receive such meaning as would advance the purpose of the Statute. Restricting or narrowing the meaning of the provision would defeat the ends of justice. He further submits that this was not a case for rectification of any mistake. It will be open for the appellant to point out to the Third Member any factual matter and the distinction with the case of M/s. Datamani Technologies (India) Ltd. In such circumstances, the Tribunal rightly dismissed the application seeking to rectify the mistake and, therefore, the appeal does not raise any substantial questions of law. It should be dismissed.