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TMI Blog2019 (12) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... d Member (Technical) allowed the Appeal [2019 (366) E.L.T. A35 (Tri.-Mumbai)]. 2. The two Members then noted the following "points of difference": "In view of the orders as above, matter is referred to Hon'ble President, to refer the matter to Third Member to determine,- Whether the appeal should be dismissed as held by Member (Judicial) or it should be allowed as held by Member (Technical)?" 3. The respondent - M/s. Sun Tex filed a Writ Petition in the Bombay High Court being Writ Petition No. 14126 of 2019 to challenge the reference order dated 22 January, 2019 alleging that specific 'point or points' on which the Members differed were required to be recorded while making the reference to a Third Member, in view of the spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition came up for hearing before the Hon'ble Bombay High Court, comprising of Hon'ble Mr. Justice M.S. Sanklecha & Hon'ble Mr. Justice Nitin Jamdar, on 13-9-2019, when the following arguments were advanced before the Hon'ble Bench on behalf of the Petitioners (the Applicants herein) : (a) In support of the contention that each of the differing Members, i.e. Member (Judicial) and Member (Technical), should frame opinion in the form of question of law and such questions should alone be referred to the Hon'ble Third Member, various arguments were advanced, taking support of the following provisions of law and judgments (compilation submitted) : 1. Section 129C of Customs Act, 1962 2. Jagat Alloys Pvt. Ltd. - 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er but commented that the Counsel appearing for the Petitioners (Sun Tex) is presuming that the President of CESTAT and/or the Third Member would not accept the law laid down by the High Courts in the above judgments. In any case, if the President and/or Third Member disagrees to follow the settled position of law on the issue, then and then only the Petitioners (Applicants herein) may approach the High Court. 6. It was also submitted before the Hon'ble High Court that the matter listed before the Third Member has been adjourned on the ground that the matter has been taken to the Hon'ble High Court and is sub-judice. 7. Under these circumstances, the Applicants are now approaching the Hon'ble President with a humble prayer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in Jagat Alloys Pvt. Ltd. v. Union of India - 2016 (335) E.L.T. 406 (Bom.) and the decisions of the Gujarat High Court in Colourtex v. Union of India - 2006 (198) E.L.T. 169 (Guj.), Commissioner of Central Excise & Customs v. Jagat Texturising - 2010 (255) E.L.T. 353 (Guj.) and Amod Stamping Pvt. Ltd. v. Commissioner of Customs - 2013 (289) E.L.T. 421 (Guj.). 9. Learned Counsel submitted that the Division Bench was required to specifically state the point or points on which there was a difference, but the manner in which the points have been framed indicates that the entire appeal would have to be heard by the Third Member, which would not only be contrary to the provisions of Section 129C(5) of the Customs Act, but also contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se who first heard it." 14. The Bombay High Court in Jagat Alloys Pvt. Ltd. observed as follows : "Upon perusal of the above with the assistance of both Learned Advocates, we find that it is surprising that as a result of this way of recording the disagreement, the entire appeal may have to be heard by the Third Member and that is hardly conducive to the larger interest of justice. The difference of opinion on facts noted should be referred specifically and a question or questions arising on that difference of opinion alone should be referred to the Third Member. If the entire appeal is to be heard afresh, then, that would not be conducive for effective and proper adjudication. Ultimately there has to be an element of certaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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