Court Invalidates Order Due to Lack of Point of Difference Formulation, Remands for Proper Procedure

The court held that the order passed by the third member without a precise formulation of the point of difference was not valid. The matter was remanded back to the Tribunal for proper formulation of the point of difference as required by law. The case was to be referred to the third member for a decision in accordance with the Customs Act. The court did not address the merits of the case and disposed of the tax appeal accordingly.

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Issues:
1. Whether an order can be passed by a majority, including the third member, when the third member holds that no specific point of difference has been placed before themRs.
2. Whether the third member should consider all aspects when a difference arises between two members of the TribunalRs.
3. Whether judicial precedents on similar issues need to be followedRs.

Analysis:
1. The case involved a tax appeal where there was a difference of opinion between two members of the Division Bench. According to Section 129C(5) of the Customs Act, in case of a difference of opinion, the point of difference was required to be stated by the members, and the matter was to be decided by a third member. The relevant part of Section 129C(5) states that if the members are equally divided, they shall state the point or points on which they differ. The opinion of the third member would form part of the majority decision.

2. The third member in this case found that the point of difference of opinion had not been formulated by the two members of the Bench. The third member was required to send the matter back to the Division Bench for formulating the point of difference of opinion. It was noted that the approach of the third member in agreeing or disagreeing without a formulated point of difference was not correct in law. The case of Colourtex v. Union of India was cited to emphasize the need for precise formulation of differences by the members of the Division Bench.

3. The Court held that the order passed by the third member and the difference of opinion expressed without a precise formulation of the point of difference could not be entertained. The matter was remanded back to the differing member of the Tribunal to formulate the point of difference as required by law. The case was to be referred to the third member for a decision as per the provisions of the Customs Act. The Court clarified that they did not delve into the merits of the case and disposed of the tax appeal accordingly.

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