Classification dispute required prior decision on limitation and duty calculation before reference to a third member.

A mistake in the formulation of the points of difference for reference to a third member was identified because the original split arose on classification, while limitation and the methodology of duty calculation had not been separately determined. Once the second member disagreed on classification, those issues became material and had to be decided first by the two-member bench before any further reference. The matter was therefore directed back for prior determination of limitation and calculation methodology by an appropriate two-member bench.

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Issues: Whether there was a mistake in formulating the points of difference for reference to the third member, and whether the issues of limitation and methodology of calculation of duty should first be decided by a two-member bench.

Analysis: The original difference of opinion arose on classification. The order did not separately address limitation and methodology because the view then taken treated the merits as having gone in favour of the assessee. Once the second member disagreed on classification, limitation and methodology became material issues requiring prior determination by the two-member bench before any further reference to a third member.

Conclusion: The formulation of the difference of opinion was held to be mistaken, and the issues of limitation and methodology of calculation were directed to be decided first by an appropriate two-member bench.

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