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TMI Blog2010 (6) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act), placed the matter before the Third Member for hearing the reference on difference of opinion. On 10th October 2005, when the matter was listed before the Third Member for hearing, petitioners invited attention to a Rectification of Mistake Application filed by the petitioners before the Tribunal requesting that the hearing of the matter before Third Member may be adjourned till the original Bench decides the Rectification of Mistake Application. The Third Member rejected the application for rectification of mistake. 2. When the matter was carried by way of petition before this High Court being Special Civil Application No.20771 of 2005, vide order made on 14th October 2005, the High Court recorded as under while rejecting the petition on other issues : "(5) It is not necessary to deal with the merits of the controversy between the parties. Section 129C(5) of the Act is couched in clear unambiguous terms. The Third Member who is assigned the matter by the President is required to hear only on the point or points on which there is difference of opinion amongst the Members of the Bench who heard the appeal originally. The Third Member can decide only such point or points b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril 2006 that the Hon'ble Court was of the view that in such a situation, law would take its own course. This fact was brought to the notice of the Registry once again by the learned advocates. Thereafter, it appears that the President of the Tribunal passed an order which has been reproduced in the communication dated 27th February 2006 addressed to the Assistant Registrar by the Deputy Registrar. The said order made by the President reads as under : "Since Hon'ble Member (T) Mr.Moheb Ali M. retired on 11.12.2005, it will now not be possible for that member to state points of difference. The Hon'ble Vice President Mumbai who was the other differing Member of the Bench is requested to formulate points of difference arising from the two opinions and make reference under Section 129C(5) to the President for further action as per the provisions of Section 129C(5) of the Customs Act, 1962." 8. Respondent No.4, one of the Members who originally constituted the Bench, has treated this order of the President as a direction, as can be seen from the opinion expressed on 7th March 2006 which is under challenge. Accordingly, respondent No.4 has formulated five points of difference stated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of section 129C(5) of the Act, which reads as under : "129C (5) : 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." 13. Before going to the said provision, it is necessary to briefly recapitulate that section 129C of the Act deals with the procedure which the Appellate Tribunal may adopt. Under sub-section (1) of section 129C of the Act, it is provided that the powers and functions of the Tribunal may be exercised and discharged by Benches constituted by the President from amongst the Members thereof. Sub-section (2) of section 129C of the Act stipulates that a Bench shall consist of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to `supplant' substantive law applicable to the case or cause under consideration of the court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly." Thereafter, this Court summarized the position in the following words : "Thus, even if it is accepted that the bunch of orders made by the Apex Court are under Article 142 of the Constitution, the said orders cannot be read as having ignored any substantive statutory provisions dealing with the subject i.e. winding up of a Company in liquidation and hence also the claim made by ONGC is required to be tested in light of the provisions of the Act read with provisions of The Provincial Insolvency Act, 1920." 16. As the aforesaid judgement principally relates to powers in exercise of jurisdiction under Article 142 of the Constitution of India, it is also necessary to consider the position when the Apex Court exercises powers of an Appellate Court. In the case of Commissioner of Income Tax v. Baroda Peoples Co-operative Bank Ltd., [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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