TMI Blog2010 (6) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... ence itself invalid. View of the third member not survived. Tribunal to decide appeal afresh. - 540 of 2009 - - - Dated:- 17-6-2010 - D.A. Mehta and H.N. Devani, JJ. Shri Gaurang H. Bhatt, for the Appellant. Shri Paresh M. Dave, for the Respondent. [Order per : H.N. Devani, J.(Oral)]. - In this appeal under Section 35G of the Central Excise Act, 1944 (the Act), Commissioner of Central Excise Customs, Surat II has challenged the order dated 17th September, 2008 [2009 (237) E.L.T. 162 (Tri. - Ahmd.)] made by the Customs, Excise Service Tax Appellate Tribunal (the Tribunal), proposing the following three questions : "(i) Whether the Learned third member of the Tribunal is right in law in presuming that the Learned Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed against the respondent herein along with penalty and interest on the ground that the respondent was not entitled to the benefit of Small Scale Exemption Notification No. 1/93 on the ground that the respondent who was engaged in texturising of yarn had used the brand name of other persons who had sent them POY for texturising. Being aggrieved, the respondent carried the matter in appeal before Commissioner (Appeals). Commissioner (Appeals) vide order dated 22nd December 2004, dismissed the appeal and confirmed the order made by the adjudicating authority. The respondent carried the matter in further appeal before the Tribunal. The appeal was heard by a Division Bench of the Tribunal comprised of Member (Judicial) and Member (Technical) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench for passing appropriate orders. 6. Vide order dated 19th September 2008 made by the Tribunal, the order impugned before it was set aside and the appeal was allowed with consequential relief. 7. Mr. Gaurang Bhatt, learned Standing Counsel for the appellant submitted that the learned Third Member while agreeing with the view of the learned Member (Technical) has observed that in view of the fact that no dissent has been recorded on the point of limitation, the appellant (the respondent herein) should succeed on that point. It is submitted that the observation made by the Third Member does not appear to be correct, inasmuch as had the Member (Technical) agreed with the Member (Judicial) on the count of limitation, he would have allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead of making a statement referring the point or points of difference?" 10. Taking into consideration the controversy and necessity of finally disposing of the question brought before the Court, the appeal is taken up for hearing and final disposal. 11. Heard the learned advocates for the respective parties. 12. Considering the view that the Court is inclined to take in the matter, it is not necessary to set out the facts and contentions in details. 13. From the facts noted hereinabove, it is apparent that the Division Bench comprised of the Member (Judicial) and Member (Technical) heard the appeal and expressed differing opinions. The Member (Judicial) allowed the appeal preferred by the respondent whereas, the Member (Technical) d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided according to the opinion of the majority, where there is a majority. While the latter part of the provision stipulates that where the Bench consists of two members or more than that but of even number, and the members are equally divided, it is incumbent upon such members to set out the point or points on which they differ. Upon such point or points of difference being stated a reference is required to be made to the President who, on the administrative side, is required to pass an order for placing the case for hearing either before himself or before any other member or other members, as the facts and circumstances of the case may require, but the case, upon such a reference being made, can be heard by the President or the Member or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f difference between the members. The entire appeal(s) cannot be referred." 15. Applying the aforesaid decision to the facts of the present case, it is apparent that the two members who recorded dissenting opinions having referred the entire appeal instead of making a statement referring the point or points of difference between the members, in the circumstances, the reference itself is invalid and as such deserves to be set aside. Accordingly, in the light of decision of this Court in the case of Colourtex v. Union of India (supra), the question is answered in the negative. It is held that the Members of the Customs, Excise and Service Tax Appellate Tribunal who had expressed dissenting opinions were not justified in referring the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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