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Tower Vision India Pvt Ltd, Bharti Infratel Ltd Versus Commissioner of Service Tax

2015 (9) TMI 734 - CESTAT NEW DELHI

Admissibility of Cenvat credit - Telecom towers - Held that:- there has been a difference of opinion between two ld. Members of a Division Bench in the case of Idea Mobile in the wake of which Division Bench has put up the matter to the Hon'ble President for reference to a third Member. - issue involved is the same as that involved in the case of Idea Mobile which the Ld Member of Division Bench expressed a difference of opinion which is to be resolved. If that matter is referred to a 3rd Member .....

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- G. Raghuram, President And R. K. Singh, Member (T), JJ. For the Petitioner : Shri N Venkatraman, Sr. Adv For the Respondent : Shri Gajendra Maheshwari, Adv ORDER Per: R K Singh: Misc. application No. 50957/2013 has been filed by the appellant to request extension of the stay granted vide Stay Order No. 58883/2013 dated 19.8.2013 till the disposal of the appeal. The appellant is ready and willing for final hearing of the appeal. But in view of the pendency of several older appeals, we are not .....

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been a difference of opinion between the ld. Members of the Division Bench and the matter is put up to the Hon'ble President, CESTAT for referring the matter to 3rd Member/Larger Bench. The appellant has pleaded that although vide the Misc. applications, it has only requested to adjourn the hearing and allow it to be an intervener in the case of Idea Mobile, as an intervener, it will not be able to argue the matter on facts and therefore instead of referring the difference of opinion to a 3 .....

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. Puri Vs. Commissioner of Income Tax, Delhi-II [1985] 151 ITR 584 iv) Central Board of Dawoodi Bohra Community Vs. State of Maharashtra - (2005) 2 Supreme Court Cases 673. 3. Ld. DR, on the other hand, stated that these appeals need not be tagged with the matter regarding the difference of opinion in the case of Idea Mobile and that the said difference of opinion could be referred to a 3rd Member. He however, agreed that there is no limitation or bar as far as the power of the Hon'ble Presi .....

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ocedure to be adopted in the case of difference of opinion is contained in Section 129C (5) of Customs Act 1962 which states as under : [(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 .....

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more of the other Members of the Tribunal. It clearly means that the difference of opinion in a Division Bench need not necessarily and always be referred only to a single 3rd Member. As regards the power of Hon'ble President CESTAT with regard to constitution of benches in the case of Central Board of Dawoodi Bohra Community Vs. State of Maharashtra (supra) the Supreme Court observed as under : Having carefully considered the submissions made by the learned senior counsel for the parties a .....

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invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down t .....

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he limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assign .....

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