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TMI Blog2015 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... 111(d) of the Customs Act, 1962 read with Rule 11 of Foreign Trade (Regulation) Rules, 1993. Consequently, the penalties on the applicants are not imposable. This issue has not been answered by this Tribunal while passing the final order. 2. In fact in final order, Hon'ble Member (Judicial) concluded that there is no misdeclaration of the value. Consequently, the impugned order is not sustainable, relying on the decisions of this Tribunal in the case of Sahil Diamonds - 2010 (257) E.L.T. A22 (S.C.) and Mahalaxmi Gems - 2008 (231) E.L.T. 198 (S.C.) passed by the Hon'ble Apex Court, but the Hon'ble Member (Technical) remanded the appeals with certain observations and directions. 3. It is contended on behalf of the applicants that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not given their finding on the issue whether the impugned goods are liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Rule 11 of the Foreign Trade (Regulation) Rules, 1993 in the facts of the case. If both the Members have considered the issue and given their finding and both the Members agrees that goods are not liable for confiscation under Section 111(d) of the Customs Act, 1962, in that case the matter is not required to be referred to the Third Member for consideration. Therefore, it is quite necessary to answer the issue whether the goods are liable for confiscation under Section 111(d) read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 or not. 7. We do not agree with the case law reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself 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. 6. Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its power or of the discharge of its functions including the places at which the Benches shall hold their sittings. 7. ........" 10. Relying on this observation of the Hon'ble High Court of Bombay, we are of the opinion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued on both the issues and somehow the 2nd issue has been left out. I have also gone through two judgments, one referred by the learned Spl. Counsel for Revenue and the other referred by the Sr. Advocate for the applicants. My learned Brother has reproduced para 6 of the said judgement in para 9. I have gone through the said judgment. Para 6 of the said judgement reproduces Section 129C of the Customs Act and does not contain observation of the Hon'ble High Court. However, in view of the observations of the Hon'ble Bombay High Court in paras 17, 19, 20, 21 and 22, this Tribunal is required to admit the Rectification of Mistake and answer the second issue which is also mentioned by my learned Brother in para 10. 14. I also note during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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