TMI Blog2016 (2) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... blish fraudulent availment of credit. It is not brought out by the counsel that the two Members had agreed on the sufficiency of some evidence and disagreed on some other evidence. The issue is to be decided in the present case cannot be compared to the issues which were under consideration in the judgments cited by the ld. counsel. The Member (Judicial) held that the evidence produced by Revenue is not sufficient whereas Member (Technical) held that the evidence produced is sustainable. One Member may look at the evidence from a certain perspective whereas the other Member may look out the same evidence from different perspective. But the fact is that both the Members have given a definite conclusion based on the evidence on record. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial) and Member (Technical) the Hon ble President nominated the Third Member Shri P.K. Jain, Member (Technical) to resolve the difference of opinion. This application is filed seeking rectification of the mistake that has crept in the framing of the questions referred to the Hon ble Third Member which is reproduced below :- The evidence produced by the Revenue is not sufficient to establish the fraudulent availment of credit by the appellant and consequently the demand of duty should be set aside and penalties are not imposable as held by Member (Judicial) OR Whether the evidence produced by the Revenue establishes wrongful availment of Cenvat credit and consequently demand of duty and imposition of penalties is sustainable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement of Mr. Guru R. Guthyal, Manager of M/s. B.S. Patel Roadways; - Statement of Mr. Gururangappa, Managing Director of M/s. B.S. Patel Roadways; - Statement of Dinesh Ramnarayan Yadav, Accountant of the applicant; - Statement of C.S. Rawat, Factory in-charge of the applicant; - Raw material Receipt Register, Transport Vouchers and RG 23A-Part-I - Statement of Mr. Asit K. Mandal, Authorised signatory of SAPL 3.2 In the application such list of evidence is given till para t . We are not reproducing the entire list of evidence as that would not be necessary. It is sufficient to say that the paras at a and b above are good illustration of evidence which the ld. counsel is referring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue is sufficient to establish the fraudulent availment of credit. 5. Having considered the rival contentions, we find that the citations relied upon by the ld. counsel are on a different footing. The facts in the case of Suzlon Infrastructure Ltd. (supra) were different. In that case it was pleaded that the Tribunal Members gave finding on some submissions and in respect of some others both the Members did not record their findings though they are germane for the purpose of deciding the matter. The Court agreed that the Tribunal did not fix points for determination appropriately which were relevant for disposal of the appeal and only those points were referred to the Third Member on which the two original Members have difference. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought out by the counsel that the two Members had agreed on the sufficiency of some evidence and disagreed on some other evidence. The issue is to be decided in the present case cannot be compared to the issues which were under consideration in the judgments cited by the ld. counsel. The Member (Judicial) held that the evidence produced by Revenue is not sufficient whereas Member (Technical) held that the evidence produced is sustainable. One Member may look at the evidence from a certain perspective whereas the other Member may look out the same evidence from different perspective. But the fact is that both the Members have given a definite conclusion based on the evidence on record. There is no finding in the order that a certain evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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