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2019 (12) TMI 1378 - AT - CustomsValidity of reference order dated 22 January, 2019 - it was alleged that specific ‘point or points’ on which the Members differed were required to be recorded while making the reference to a Third Member, in view of the specific provisions contained in Section 129C of the Customs Act, 1962 - miscellaneous application has been submitted before the President with a prayer that the Bench referring the matter should have specifically stated the ‘point or points’ on which they differed to a Third Member or in the alternative the matter may be directed to be heard by another Bench. HELD THAT:- 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 complied 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 expressed 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. 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 India, and the provisions of Section 129C(5) of the Customs Act as also the four decisions of High Court, 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. Application disposed off.
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