Page 216 - ELT_15th June 2020_VOL 372_Part 6th

894 EXCISE LAW TIMES [ Vol. 372

frame opinion in the form of question of law and such ques-
tions should alone be referred to the Hon’ble Third Member,
various arguments were advanced, taking support of the fol-
lowing provisions of law and judgments (compilation submit-
ted) :
1. Section 129C of Customs Act, 1962
2. Jagat Alloys Pvt. Ltd. - 2016 (335) E.L.T. 406 (Bom.)
3. Colourtex - 2006 (198) E.L.T. 169 (Guj.)
4. Amod Stampings Pvt. Ltd. - 2013 (289) E.L.T. 421 (Guj.)
5. Jagat Texturising - 2010 (255) E.L.T. 353 (Guj.)
(b) It was also submitted that law is settled by the Hon’ble Bom-
bay High Court as well as Hon’ble Gujarat High Court and,
hence, the Referral Bench of Hon’ble Tribunal has erred in re-
ferring the entire appeal to the Hon’ble Third Member, with-
out framing any specific point/s of difference, among the
Members.
4. The Hon’ble High Court was of the view that the procedure and law on
the issue is very clear and, hence, there was no necessity for the Petitioners
(Applicants herein) to approach the High Court. It was further commented
by the High Court that law, as interpreted in the above cases, is binding on
the Tribunal. The Hon’ble High Court was of the view that either a repre-
sentation to the President of CESTAT should have been made or the said
settled position of law could be argued before the Third Member instead of
approaching the High Court. The Hon’ble High Court further observed that
passing of any order by the High Court, by the following the ratio of judg-
ments directly on the issue, would lead to interference with the internal
working of the CESTAT.
5. The Applicants submit that in spite of consistent persuasion, on behalf
of the Petitioners (Applicants herein), to pass a formal order to the above ef-
fect, the Hon’ble High Court did not pass an order but commented that the
Counsel appearing for the Petitioners (Sun Tex) is presuming that the Pres-
ident of CESTAT and/or the Third Member would not accept the law laid
down by the High Courts in the above judgments. In any case, if the Presi-
dent and/or Third Member disagrees to follow the settled position of law
on the issue, then and then only the Petitioners (Applicants herein) may
approach the High Court.
6. It was also submitted before the Hon’ble High Court that the matter
listed before the Third Member has been adjourned on the ground that the
matter has been taken to the Hon’ble High Court and is sub-judice.
7. Under these circumstances, the Applicants are now approaching the
Hon’ble President with a humble prayer to direct the Referral Bench to
frame relevant question/s of difference of opinion to be decided by the
Hon’ble Third Member, instead of referring the entire appeal to the Third
Member or alternatively the matter may be heard by another bench.”
6. It is seen that paragraph four of the application mentions that while
hearing the Writ Petition filed by Sun Tex to assail the reference order, the High
Court was of the view “that either a representation to the President of CESTAT
should have been made or the said settled position of law could be argued before
the Third Member instead of approaching the High Court. It also mentions that
EXCISE LAW TIMES  15th June 2020  216