TMI Blog2009 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 - - - Dated:- 2-5-2009 - <?xml:namespace prefix = st2 /> Ferdino I. Rebello and J.H. Bhatia, JJ. S/Shri V. Sreedharan with Prakash Shah i.b. PDS Legal for the Petitioner. Shri P.S. Jetley with Ms. Rutuja Ambekar, for the Respondent. [Judgment per Ferdino I. Rebello, J. (Oral)]. - Rule. Heard forthwith. 2. The petitioner on 21st January, 2009 had filed an application under Section 86 of the Finance Act, 1994 read with section 35C of the Central Excise Act, 1944 and under inherent jurisdiction of CESTAT for passing supplementary order and for formulating revised questions, if needed. The matter arose thus: In an appeal preferred by the petitioner there was difference of opinion disclosed in the orders passed by two members and consequential questions were framed for determination of a third member. The third member has listed the matter for final hearing on 22nd May, 2009. Earlier when the matter came up for hearing before the third member the petitioners informed the third member that an application dated 21st January 2009 was filed for passing a supplementary order. The third member only indicated that he has no jurisdiction to hear su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding Against the petitioners 6. Even if contract or activity of electrical work is classified as "erection service" no differential tax is payable since the appellant included the value of equipment/ machinery installed in the electrical yard, while applying the percent age of 33%. No finding Against the petitioners 7. Both civil contract and electrical contract involve supply of substantial material and therefore are individually 'works contract' liable to service tax only with effect from 1-6-07 and not liable to service tax prior to that date, Prior to 1-6-07 pure labour contract or service contract not involving any goods alone was taxable. Alternatively if the entire activity/contract is treated as one it would even more easily constitute works contract and therefore would be liable to service tax only after 1-6-2007. In favour of Petr. Against the Petr. The Hon'ble Member (Tech) held that this ground amounted to setting up of new case before the Tribunal and therefore cannot be entertained Notification granting abatement of 67% cannot create levy of tax on 'works contract' The cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the Bench at the time of hearing the appeal was bound to have settled the points for determination and answer the said points. The points for the determination are those points which are relevant for deciding the controversy in appeal and if decided will have the effect of deciding the fate of the appeal. In the instant case, it is submitted that the learned Bench did not fix the points for determination. It is in these circumstances, that only some of the submissions advanced at the bar and raised in the appeal memo have been considered without answering other submissions and/or points which were relevant for disposal of the appeal. The consequences is that what has been referred to the learned third member are only the points on which the members have deferred (sic) (differed). The third member considering his jurisdiction will only decide the said points. On his decision, the appeal would have to be disposed of by the two members originally constituting the Bench in terms of the opinion given by the third member as that opinion would become the majority view. The result would be that though there are other points for determination which are relevant and having been n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from orders passed by the appellate tribunal which orders are not enforceable because of difference of opinion on points arising from the orders. These points finally shall be decided according to the opinion of the majority of the members of the tribunal who have heard the case including those who have first heard it. The final order would be based on the opinion of the third member who answers the point of difference referred to him as that would constitute the majority opinion. The third member does not pass any order. Such member only answers the points referred. The power to rectify under Section 35C(2) is the order. 11. Let us now examine some judgments referred at the bar by learned counsel for their submissions. On behalf of the petitioner, learned counsel firstly draws our attention to the judgment of the High Court of Delhi in Commissioner of Income Tax v. Shri Ram Memorial Foundation - (1991) 93 CTR (Del) 194. In that case, the Accountant Member did not consider one claim on merits just because, a small amount was involved. The Accountant Member did not also categorically - state that he agreed with the conclusions of the Judicial Member. A misc. application wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey differ and the case shall be referred for hearing on such point or points by one or other member of the appellate tribunal and the decision on such point or points shall be according to the opinion of the majority of the members of the appellate tribunal who have heard the case including those who first heard it. A learned Judge of the Karnataka High Court observed that as there was no final order the petitioner's appeal could not be entertained. 14. Our attention is also invited to the order of tribunal in Mangalore Chem. Fertilisers Ltd. v. Collector of Central Excise, 1998 (98) E.L.T. 490 (T). In that case, there was difference of (sic) (opinion) between two members constituting the Bench. The point was referred to the President for reference to the third Member. After the matter was heard by the third member the Member referred back to the original Bench with observations for re-framing the reference if necessary. The matter was thereafter listed before the Bench and after it had been heard an opportunity was given to the appellant seeking clarifications. Accordingly, an application was moved. On the application moved, the Member (Judicial) who had not expressed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a conference on the difference and arrive at a unanimous judgment. If after consultation they find that it is not so possible to concur then only to give a dissenting judgment. The Allahabad High Court in J.K. Steel Co. Ltd. (supra) made a reference to the judgment in Subramaniam Chettiar v. Muthuswamy - (1941) 192 IC 225. The Court there had observed that a difference of opinion amongst members who are equally divided did not individually nor collectively constitute a decision of the tribunal. 17. The issue therefore, before is whether during the pendency of the application before the third Member, is it open to an aggrieved party to apply for rectification? The difference of opinion can only arise when there are differing opinions in judgments or orders of members as noted in Subramaniam Chettiar (supra.) These difference of opinions would not constitute a decision. Under Section 35C power is to amend an order to rectify any mistake apparent from the record. The members of the tribunal can only pass orders. If they differ in their opinion nevertheless those order would not cease to be orders. Those orders however cannot be enforced as there is no enforceable order. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 472 (S.C.) which was a case under the provisions of the Central Excise Act. 19. The Bench is bound to refer the points of difference for determination and get answered the said points by a third Member. The points for determination would be those points which are relevant for the purpose of deciding the controversy and if decided would have the affect of determining the controversy in the appeal. For this purpose while hearing and deciding an appeal the Tribunal is bound to frame points for determination which are relevant for deciding the issue in controversy in the appeal. Once the points for determination are fixed the members are bound to answer the points so framed. It is only on the points on which there is difference of opinion, then only is there a need to refer to a third Member those points for determination. It is in that context while disposing of appeals the tribunal is bound to fix points for determination and answer the said. 20. In the instant case, as we have noted, there are several points which have not been answered. Each of those points if answered and if both the members had concurred could have resulted in the appeal being allowed or dismissed. The ..... 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