TMI Blog2010 (6) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 recorded by respondent No.4 herein and communication dated 28th March 2006 fixing the hearing of the matter before Third Member of the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (the Tribunal). On 19th December 2003, an Order in Original came to be made by respondent No.6 which was challenged by way of appeal before the Tribunal. On 12th August 2005, the Bench which was assigned the appeals, heard the appeal and one of the Members allowed the appeal filed by the petitioners while the other Member rejected the appeal filed by the petitioners. The President of the Tribunal in exercise of powers under section 129C(5) of the Customs Act, 1962 (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 rectificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retired. 6. Vide communication dated 8th February 2006, the petitioners, through their advocates, sought direction from the President for making a reference to the Third Member only after the Bench formulated and stated specific point or points of difference. On 15th February 2006, the Registry of the Tribunal informed the advocates of the petitioners that as one of the Members had retired, the original Bench could not be convened and the petitioners were requested to move the High Court for necessary modification of the direction. 7. The learned advocates for the petitioners mentioned the matter orally before the Bench and it is stated in the additional affidavit dated 15th April 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the hearing of the appeal. It was, therefore, submitted that the petition be rejected, leaving it open to the Third Member of the Tribunal to proceed with the hearing of the appeals. 11. In the judgement rendered on 12th January 2006 in the petitioner's own case in Special Civil Application No.24130 of 2005, the High Court has elaborately dealt with the provisions of section 129C(5) of the Act as can be seen from paragraph Nos.15 to 20. Unfortunately, the direction issued in paragraph No.23 of the said judgement has not been understood either by the President or the Member who originally constituted the Bench, namely, respondent No.4. 12. It is necessary once again to refer to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignored the statutory provision of section 129C(2) of the Act once having originally assigned the appeal to a Division Bench. No direction of any Court could be read to mean that an action contrary to statutory provision is warranted by any authority. 16. In the case of Oil and Natural Gas Corporation Ltd. v. O.L. of Ambica Mills Co. Ltd., 2005 (1) GCD (Gujarat), this High Court referred to the Apex Court decision in the case of Supreme Court Bar Association v/s Union of India and another, 1998(4) SCC 409 and reproduced the following extracts from the said judgement : "This power exists as a separate and independent basis of jurisdiction apart from the statutes." "This power cannot be used 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sident or the 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. 19. Thus, by no stretch of imagination or legal ingenuity, can one read and interpret the provisions to mean that even in absence of a Bench, only one of the Members who originally constituted the Bench, can state the point or points of difference and make a reference to the President. It is only in peculiar facts of the present case that this situation has come up because of the litigation that ensued between the parties. To be more precise, between the petitioners and the Tribunal, that this situation has arisen. One would have expected the President to read the provision and act accordingly considering the plain language of the provision. 20. In the circumstances, the entire exercise commencing from the order made by the President directing respondent No.4 herein to formulate the points of difference, the order (opinion) dated 7th March 2006 and the communication dated 28th March 2006 are held to be bad in law being con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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