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Cus - Difference of opinion rendered does not contain point/points on which Members have differed, therefore, order set aside - as both Members have retired, appeal to be heard afresh: High Court

By TIOL News Service

AHMEDABAD, JAN 12, 2017: THE petitioners have challenged the order passed by the Division Bench wherein the following difference of opinion is referred to the President so that the matter is heard by a third Member on reference.

 

 

 

Difference of opinion:

(i) Whether with regard to the show cause notice dated 19.09.2004, the penalty imposed on M/s. Modern Petrofils is to be set aside and the penalty on M/s. Filatex India is to be reduced to Rs.1,00,000/- as held by the learned Member (Judicial) or the penalties imposed on M/s. Modern Petrofils and M/s. Filatex are to be upheld as held by the learned Member (Technical).

(ii) Whether the penalty imposed on Shri Bhinandan Kataria is to be set aside as held by the learned Member (Judicial) or is to be upheld as per the order of the learned Member (Technical).

The High Court notedthat the impugned difference of opinion rendered by the CESTAT does not contain the point or points on which the members of CESTAT have differed.

The decision in the case of Colourtex (2006-TIOL-128-HC-AHM-CUS) that - "the members who expressed dissenting opinions are bound by the statute to state the point or points of difference and make reference after making such a statement" was also adverted to by the High Court.

It was further observed -

+ As is evident on a perusal of the "Difference of Opinion", essentially what the learned Members have done is referred the entire question of penalty without spelling out the point or points on which the members have differed. The present case would, therefore, stand squarely covered by the above decision.

+ In the present case, as noted hereinabove, neither of the Members who originally constituted the Bench is now available for stating the point/points of difference. Besides, the court has also held that after the President or Third Member renders an opinion on reference, the appeals have to be decided in accordance with the opinion of the majority, and the majority has to be from amongst the Members who have heard the case and includes the Members who first heard it.

+ In this case, the Members who first heard the case are no longer available and hence, an impossible situation has arisen whereby it would not be possible to give effect to the provisions of sub-section (5) of section 129C of the Act.

The High Court, while quashing and setting aside the order of the Tribunal to the extent the same relates to the question of imposition of penalty on M/s. Modern as recorded in the difference of opinion between the members, also held -

++ The Tribunal is directed to hear the appeal afresh to the aforesaid limited extent without in any manner being influenced by any observations made by the Members in the impugned order.

++ The President shall ensure that the Appeal No.E/557/2008 is heard in consonance with the provisions of section 129C(2) of the Act as per the original assignment of appeals to a Division Bench by a Division Bench having territorial jurisdiction as per the position prevalent today.

The petition was allowed.

(See 2017-TIOL-73-HC-AHM-CUS)


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