1991 (3) TMI 244

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....he hearing of the matter. Shri M.S. Arora, learned JDR who has appeared on behalf of the Collector pleaded that there were difference of opinion between two Members and the reference was made to the President as third Member and the Third Member while deciding the point of reference has sent back the matter to the Bench which had passed the order without expressing his opinion. Shri M.S. Arora, learned JDR stated that the third Member cannot go beyond the point of reference. In support of the same, he referred to the judgment of the Patna High Court in the case of Hanutram Chandanmul v. Commissioner of Income Tax, Bihar and Orissa where the Patna High Court had held that the Third Member cannot take a different view. Shri M.S. Arora argued ....

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....;Shri K. Narasimhan, learned Advocate who has appeared on behalf of the assessee stated that no ROM is maintainable as no finality of the decision has been reached. He has pleaded for the rejection of the application for rectification of the mistakes. 3. We have heard both sides and gone through the facts and circumstances of this case. Before we proceed to decide the present ROM application, we feel that reproduction of the relevant provisions of law is every essential. Section 129B is reproduced below :- "(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may....

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.... or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary, and sub-section (2) further gives the power to the Tribunal to rectify a mistake apparent from record, amend any order passed under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal. The order passed by the Members differing from each other is not a final order and a difference of opinion had arisen which was referred to the President in terms of the provision of sub-section (5) of Section 129C of the Customs Act, 1962 and the President while disposing of the point of r....