Page 217 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] COMMISSIONER OF CUSTOMS (IMPORT), NHAVA SHEVA v. SUN TEX 895

the High Court further observed “that passing of any order by the High Court,
by following the ratio of judgments directly on the issue, would lead to interfer-
ence with the internal working of the CESTAT.” In paragraph five of the applica-
tion, it has been stated that the High Court did not pass a formal order “but
commented that the Counsel appearing for the Petitioners (Sun Tex) is presum-
ing that the President of CESTAT and/ or the Third Member would not accept
the law laid down by the High Courts in the above judgments”.
7. Shri Manish Saharan Learned Counsel has appeared on behalf of
M/s. Sun Tex and Shri Rakesh Kumar Learned Authorised Representative has
appeared on behalf of the Department.
8. Learned Counsel for M/s. Sun Tex has placed the provisions of Sec-
tion 129C of the Customs Act, 1962 as also the decision of the Bombay High
Court in Jagat Alloys Pvt. Ltd. v. Union of India - 2016 (335) E.L.T. 406 (Bom.) and
the decisions of the Gujarat High Court in Colourtex v. Union of India - 2006 (198)
E.L.T. 169 (Guj.), Commissioner of Central Excise & Customs v. Jagat Texturising -
2010 (255) E.L.T. 353 (Guj.) and Amod Stamping Pvt. Ltd. v. Commissioner of Cus-
toms - 2013 (289) E.L.T. 421 (Guj.).
9. Learned Counsel submitted that the Division Bench was required to
specifically state the point or points on which there was a difference, but the
manner in which the points have been framed indicates that the entire appeal
would have to be heard by the Third Member, which would not only be contrary
to the provisions of Section 129C(5) of the Customs Act, but also contrary to the
aforesaid decisions of the High Courts.
10. Learned Counsel, therefore, submitted that the President may send
the matter back to the Division Bench for formulating specific ‘point or points’ on
which the Learned Members differ so that only such point or points can be re-
ferred to a Learned Third Member.
11. Shri Rakesh Kumar, Learned Authorised Representative of the De-
partment has submitted that only one point had arisen for determination the
Appeal and, therefore, that point may be referred to the learned Third Member
or that point itself may be decided by the President.
12. The contentions advanced by the Learned Counsel for the Appel-
lant and the Learned Authorised Representative of the Department have been
considered.
13. Section 129C(5) of the Customs Act, which is relevant of the pur-
pose of the application, is reproduced below :

“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.”
EXCISE LAW TIMES  15th June 2020  217