Page 218 - ELT_15th June 2020_VOL 372_Part 6th

896 EXCISE LAW TIMES [ Vol. 372

14. The Bombay High Court in Jagat Alloys Pvt. Ltd. observed as
follows :
“Upon perusal of the above with the assistance of both Learned Advocates,
we find that it is surprising that as a result of this way of recording the dis-
agreement, the entire appeal may have to be heard by the Third Member
and that is hardly conducive to the larger interest of justice. The difference
of opinion on facts noted should be referred specifically and a question or
questions arising on that difference of opinion alone should be referred to
the Third Member. If the entire appeal is to be heard afresh, then, that
would not be conducive for effective and proper adjudication. Ultimately
there has to be an element of certainty and finality to a litigation. None
should be allowed to take chances or have a rehearing of the proceedings
before the same Court.
15. In Colourtex, the following difference of opinion was placed before
the President for reference to a Third Member by the Division Bench :
“Whether the appeals are required to be rejected as held by Member (Tech-
nical)?
OR
Whether the appeals are required to be allowed as held by Vice-President?”
16. In paragraph 10 of the judgment, it has been noted that the Counsel
for the petitioner was orally directed by the Bench to approach the President of
the Tribunal to ensure that the provisions of Section 129C of the Act were com-
plied with by the Division Bench of the Tribunal. The President observed that
Section 129C(5) mandatorily requires, if the Members were equally divided, to
frame the point or points on which they differed, but felt handicapped in making
any order. The Division Bench, thereafter, observed that the Members who ex-
pressed dissenting opinion, were bound by the statute to state the ‘point or
points’ of difference and make reference after making such statement and the
entire appeal cannot be referred to a Third Member.
17. In view of the observations made by the Division Bench of the
Bombay High Court, as noted in the application filed appeal, M/s. Sun Tex In-
dia, and the provisions of Section 129C(5) of the Customs Act as also the four
decisions of High Court referred to above, it is considered necessary to refer the
matter to the Hon’ble Members constituting the Division Bench to specifically
formulate the point or points of difference of opinion while placing the matter
before the President for nominating a third Member to decide the point or points
of difference of opinion.
18. The application stands disposed with the aforesaid observations.
(Dictated and pronounced in the open Court)

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