TMI Blog2006 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... Sreedharan, the counsel forthe appellants and Mr.K.R. Chaudhari, the counselfor the revenue. 2. The following substantial questions of law arise in this appeal : 1) In view of the difference of opinion amongst two members of the bench, to the specific question referred to the third member, whether the third member could go beyond the question and take a view different from both the members of the bench who referred the question ? 2) Whether on the basis of the opinion of the third member, upon the matter being referred to the bench, the order of remand passed by the bench is ambiguous and equivocal ? 3. We thought it fit to dispose of the appeal itself at this stage and we considered the matter accordingly. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to have been voluntarily) deposited by TR-6 challan No.0038/00-01/23/624/1 dated 11-1-2001 for Rs.3,00,000.00 and TR-6 challan No.0038/00-01-23/633/1 dated 13-1-2001 for Rs.2,00,000.00, towards the Central Excise duty, should not be appropriated against the duty amount demanded and/or fine and/or penalty imposed, if any, 5. The appellants filed reply to the show cause notice on 30 th September, 2001 and refuted the allegations. It was submitted that cleated and riveted stampings sold by them were not sold as stator as they require much more processes to become stators. Only because these are used in electric motors after stator processing would not make them stators or a part of electric motor. The electric stampings in riveted or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the activity carried on by the first appellant amounted to manufacture as envisaged under the Central Excise law and since the adjudicating authority did not advert to this aspect, the matter needed to be remanded back to the adjudicating authority to reach the conclusion as to whether the activity carried on by the first appellant amounts to manufacture. According to him, the other issues regarding eligibility of credit and working out of duty and the penalty could be re-determined as per settled law. 9. In the light of difference of opinion amongst the members of the bench, the following question was referred to the third member. Whether in the facts of this case, the matter is required to be remitted back to redet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainly overstepped the limits of his jurisdiction. He proceeded as if he was completely free in dealing with the reference and could opine on the point which was not the difference of opinion. He ought to have confined to the difference between the two members as was reflected in the question referred to him. We hold that the third member could not go beyond the question and he erred in taking a view different from both the members. 13. Upon receipt of the opinion of the third member, the disposal of the appeal by the bench that the appeal is allowed as remanded is highly ambiguous. What is the scope of remand is not clarified. If the bench meant remand of appeal is confined to recomputation of assessable value and redetermination of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
