TaxTMI 
TaxTMI 
TaxTMI 
2010 (6) TMI 251
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....uestions : "(i) Whether the Learned third member of the Tribunal is right in law in presuming that the Learned Member (Technical), concurred with the Learned Member (Judicial) as the issue of limitation even while Member (Technical) did not specifically state his findings as such on issue of limitation and indirectly disagree with the Member (Judicial) on both the aspects in as much as concurrence on the point of limitation would have rendered the matter in favour of the assessees at such stage and there was no need to refer the matter to Learned third (Member) per se? (ii) Whether the Learned third member of the Tribunal ought not to have stated his own findings specifically on the issue of limitation also, having identified the issue of....
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....he appeal was heard by a Division Bench of the Tribunal comprised of Member (Judicial) and Member (Technical). Before the Tribunal, the respondent had assailed the order of the Tribunal on merits as well as on the ground of limitation. The learned Member (Judicial) held that the benefit of small scale exemption could not be denied to the respondent and also held that the demand was hit by limitation and accordingly, allowed the appeal with consequential relief. The Member (Technical) recorded a dissenting view by a separate order and held that the respondent had no case and accordingly, dismissed the appeal. In the light of the difference in opinion, the Division Bench directed that the matter be placed before the President for referring th....
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....the Member (Technical) agreed with the Member (Judicial) on the count of limitation, he would have allowed the appeal on that ground in which case there would have been no occasion to refer the matter for the opinion of the third member, whereas, in fact, he has dismissed the appeal. It is urged that such a situation has arisen mainly for the reason that the Division Bench did not draw up a statement setting out the point or points of difference for referring the matter. 8. Learned Standing Counsel for the appellant-Revenue has invited attention to the question which was referred to the Third Member for his opinion, to submit that the same was not in consonance with the principles enunciated by this Court in the case of Colourtex v. Union ....
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....mber (Judicial) allowed the appeal preferred by the respondent whereas, the Member (Technical) dismissed the appeal. In the light of the difference in opinion, the Division Bench made a reference presumably under the provisions of Section 35D (1) of the Act read with Section 129C(5) of the Customs Act, 1962. A perusal of the order of reference, which has been reproduced hereinabove, clearly shows that the Members instead of stating the point or points of difference have practically referred the entire appeal. 14. It may therefore, be germane to refer to the decision of this Court in Colourtex v. Union of India (supra) wherein it has been held thus : "(16) Section 129C(5) of the Act requires that where Members of Tribunal differ in opinion....
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....ut the case, upon such a reference being made, can be heard by the President or the Member or Members only on the point or points of difference stated by the original Bench which heard the appeal. The President or the Third Member does not derive any independent jurisdiction and has no powers to decide the appeal in entirety. (18) The legislative intent discernible from a plain reading of the provision is to ensure that the appeal or appeals are to be disposed of only by the Bench originally assigned the appeal or appeals as ordered by the President on the administrative side. This becomes clear from a conjoint reading of sub-sections (1) and (4) of Section 129C of the Act. Sub-section (5) of Section 129C of the Act stands out in contrast ....