2016 (2) TMI 211

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....3. The ld. counsel for the appellant points out that because of the difference in opinion between Member (Judicial) and Member (Technical) the Hon'ble President nominated the Third Member Shri P.K. Jain, Member (Technical) to resolve the difference of opinion. This application is filed seeking rectification of the mistake that has crept in the framing of the questions referred to the Hon'ble Third Member which is reproduced below :- "The evidence produced by the Revenue is not sufficient to establish the fraudulent availment of credit by the appellant and consequently the demand of duty should be set aside and penalties are not imposable as held by Member (Judicial) OR Whether the evidence produced by the Revenue e....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....t of Mr. Anil Padalia, Director of M/s. National Block; -        Invoices issued recovered from the applicant's possession and the invoices received at the Octroi Naka in the name of M/s. National Block; b.      In respect of credit pertaining to 29,343 kgs. of Aluminium Sections/Profile purchased from M/s. Shreeji Aluminium P. Ltd. (SAPL for short) -        Statement of Mr. Paresh Patel, Managing Director of SAPL; -        Statement of Mr. Guru R. Guthyal, Manager of M/s. B.S. Patel Roadways; -        Statement of Mr. Gururangappa, M....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....4 On the issue of maintainability he relied on Colourtex v. UOI - 2008 (9) S.T.R. 426 (Guj.) = 2006 (198) E.L.T. 169 (Guj.) and Suzlon Infrastructure Ltd. v. UOI - 2009 (243) E.L.T. 497 (Bom.) = 2009 (15) S.T.R. 529 (Bom.). On the issue that the two Members hearing the appeal must make a statement referring the point of opinion on each evidence, he relied on CCE v. Jagat Texturising - 2010 (20) S.T.R. 564 (Guj.) = 2010 (255) E.L.T. 353 (Guj.) and on Suzlon Infrastructure Ltd. - 2009 (243) E.L.T. 497 (Bom.) = 2009 (15) S.T.R. 529 (Bom.). 4. Ld. Commissioner appearing for the Revenue opposes the application and states that for rectification of mistake the mistake must be obvious. In the present case, the question framed for refer....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ence is invalid and the Members who expressed dissenting opinions were not justified in referring to the entire appeal instead of making a statement referring the points of difference. In the case of Colourtex (supra) the point of difference which was referred was : "Whether the appeals are required to be rejected as held by Member (Technical)? OR Whether the appeals are required to be allowed as held by Vice-President?" The Hon'ble High Court held that the two Members must state the points on which they differ. 5.1 We find the situation in the present case is different. In the present case, the question referred to the Third Member above, is very clear. What has been referred for opinion of the Thir....