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TRIBUNAL- DIFFERENCE OF OPINION ON FACTS ADMITTED BY PARTIES SHOULD BE AVOIDED

Customs - Import - Export - SEZ - By: - CA DEV KUMAR KOTHARI - Dated:- 29-6-2015 - SARTO ELECTRO EQUIPMENTS PVT. LTD. Versus UNION OF INDIA 2015 (6) TMI 861 - BOMBAY HIGH COURT Court / Tribunal - general discussion about resolution of difference: When a bench of Court or Tribunal consists of two members ( Or other even numbers in some situations) , there can be difference of opinion between two members, and in such a case, the matter is to considered by third member and then order is finalised i .....

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Tribunal consider facts and give finding of facts. Facts found by Tribunal are generally final. When facts are found and there is no difference or disputes on facts, the Tribunal also consider and examine facts. However, when there is no dispute on facts between contesting parties, the role of Tribunal is generally restricted to the issue involved and legal issues. In such circumstances, generally there should not be difference of opinion between two members of Tribunal. Tendency to make case o .....

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case of Sarto Electro (supra.) honourable Bombay High Court, while considering issue raised by way of Writ Petition, considered instances of difference of opinion between members in original order as well as in order on rectification petition. The Tribunal also noted that the Third Member also did not resolve the dispute but held that the contentions raised should be considered by bench, and matter was lingering. The High Court observed that difference of opinion was on facts and on trivial iss .....

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. The reported judgment is reproduced with highlights for easy understanding of readers and to avoid repetition. 2015 (6) TMI 861 - BOMBAY HIGH COURT Other Citation: 2015 (318) E.L.T. 55 (Bom.) SARTO ELECTRO EQUIPMENTS PVT. LTD. Versus UNION OF INDIA Writ Petition No. 9404 of 2014 Dated - 12 March 2015 Rectification of mistake - One member finding fault with another - Held that:- both, the main Appeal as also the rectification application have not been dealt with satisfactorily and there was ext .....

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rs can repeatedly differ. If the facts are undisputed and agreed upon by parties and they present legal issues for resolution of the Tribunal, then, those deserve prominence. We are also not impressed by the attitude of one Member finding fault with the other while dealing with the contentions of the parties and essentially on facts. - Decided in favour of assessee. Judgment / Order S.C. Dharmadhikari and Sunil P. Deshmukh, JJ. Shri Prakash Shah with Jas Sanghavi and Ms. Niyati Hakani i/b. M/s. .....

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and which was considered by the same Bench at length. In dealing with that application as well, the Members differed. One of them found that there is a need to rectify certain mistakes in the order, which is dated 20th February, 2014 but pronounced on 12th June, 2014, while the other was of the view that there is no scope for entertaining the application of this nature. That conclusion has also been perused by us. Thus, what we find is a very unhappy but at the same time avoidable situation. Th .....

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ectification of mistakes application, he should pass a separate order and he has passed a separate order, copy of which is to be found from page 353 to 355 of the paper book. He allowed the application, but not for the reasons that have been recorded by his colleague. The Member (Judicial) found that in case where no consideration was given to the issues raised by the litigants during the course of final hearing of the Appeal, it would be appropriate to give an opportunity to the litigants on th .....

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they differed in their views and drew up issues for resolution by a third Member. 3. After having noted the course of events and finding that the third Member has also not rendered any final opinion till date that we are of the view that without expressing any opinion on the rival contentions, interest of justice would be served if both the impugned orders are quashed and set aside and it is directed that the main Appeal shall be re-heard by the West Zonal Bench of the Customs, Excise and .....

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of opinion was referred to a third Member on 27th June, 2014. Though there were several hearings, the final orders could not be passed by the third Member. The reason for the same is also pendency of this Writ Petition and the liberty granted by this Court to amend the same. Later on, we found that the application for rectification of mistakes was dealt with on 3rd September, 2014, 19th September, 2014, 7th October, 2014 and finally on 31st October, 2014. The decision on this application also wa .....

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actorily and there was extensive difference of opinion that we direct a re-hearing of this Appeal. We once again emphasise the need for harmony, coordination and co-operation between the Members of the Bench, particularly in dealing with revenue matters. We expect that hereinafter, the differences of opinion would be minimal. They ought to be on issues and essentially on construction of legal provisions and interpretation of law. With regard to recording of facts and matters in connection therew .....

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