Page 215 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] COMMISSIONER OF CUSTOMS (IMPORT), NHAVA SHEVA v. SUN TEX 893

REPRESENTED BY : Shri Rakesh Kumar, Authorised Representative, for
the Appellant.
Shri Manish Saharan, Advocate, for the Respondent.
[Order]. - The Commissioner of Customs (Import), Nhava Sheva had
filed this appeal to assail the order dated 29 April, 2009 passed by the Commis-
sioner of Customs (Appeals). In the decision rendered in this Appeal on 22 Janu-
ary, 2019, the Learned Member (Judicial) dismissed the appeal, while the
Learned Member (Technical) allowed the Appeal [2019 (366) E.L.T. A35 (Tri.-
Mumbai)].
2. The two Members then noted the following “points of difference”:
“In view of the orders as above, matter is referred to Hon’ble President,
to refer the matter to Third Member to determine,-
Whether the appeal should be dismissed as held by Member (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 Mem-
bers 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 Cus-
toms Act, 1962 (the Act).
4. This miscellaneous application has been submitted before the Presi-
dent 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 be directed to be heard by another Bench.
5. The application contains seven paragraphs and they are reproduced
below :
“1. The Applicants respectfully refer to the Interim Order No. I/1/2019,
dated 22-1-2019 in Appeal No. C/853/2009 (copy enclosed as
ANNEXUR.E- “A”), passed by the Hon’ble CESTAT-WZB, Mumbai,
through which the matter has been referred to Hon’ble Third Member, be-
cause of the difference of opinion between the Hon’ble Member (Judicial)
and Hon’ble Member (Technical). The following point of difference has
been framed by the Referral Bench :
“Whether the appeal should be dismissed as held by Member (Judi-
cial) or it should be allowed as held by Member (Technical)?”
2. The said interim order has been challenged by the Applicants before Ju-
risdictional Bombay High Court by filing a Writ Petition No. 9687 of 2019 as
in terms of Section 129C of the Customs Act, 1962, the Third Member has to
decide the questions of difference of opinion framed by the Bench. Whereas
in the instant appeal, the whole appeal has been referred only to decide as
to whether the appeal is to be dismissed or allowed.
3. The said Writ Petition came up for hearing before the Hon’ble Bombay
High Court, comprising of Hon’ble Mr. Justice M.S. Sanklecha & Hon’ble
Mr. Justice Nitin Jamdar, on 13-9-2019, when the following arguments were
advanced before the Hon’ble Bench on behalf of the Petitioners (the Appli-
cants herein) :
(a) In support of the contention that each of the differing Mem-
bers, i.e. Member (Judicial) and Member (Technical), should
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