COMMISSIONER OF CUSTOMS Vs. COLOURTEX

JUDGEMENT

(1.) THE brief facts leading up to the filing of the above applications are that the Commissioner of Customs, Kandla, passed an order dated 26.12.2003 which was challenged by way of filing appeals under Section 129A of the Customs Act. The appeals were heard by the West Zonal Bench of the Tribunal at Mumbai and two opinions were expressed by the Members of the bench who heard the appeals - while the Member (Technical) held that the appeals were required to be rejected, the Vice President held that the appeals were required to be allowed. Due to the difference of opinion, the following question was formulated and placed before the Hon'ble President of the Tribunal 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.

(2.) PURSUANT to the above, the Hon'ble President referred the matter to a third Member. The hearing scheduled for 20th October, 2005 before the third Member was adjourned to 10th and 11th of November, 2005. The applicants filed Special Leave Application before the Hon'ble Gujarat High Court for a direction to the bench of the Tribunal to state the point or points on which there is a difference of opinion, in accordance with Section 129C(5) of the Customs Act, and by an order dated 24th October, 2005 the High Court permitted the applicants to withdraw the Special Leave Application to enable them to approach the bench with the same prayer. This has caused the filing of MA/2981/05. MA/3100.05 has been filed by the Revenue seeking rejection of MA/2981/05.

(3.) WE have heard both sides. Section 129C(5) reads as under: If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority: but if the members are equally divided, they shall 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 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. According to the applicants, the point/points of a difference between the Members of the bench who heard the appeal has/have not been clearly enumerated as required under the Section. They cited the following decisions in support of their contention that only the point of difference or points of difference can be referred to a third Member and not the entire case: