TaxTMI 
TaxTMI 
2017 (1) TMI 789
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....ad. (2) Short facts are adumbrated as under: (2.1) The petitioner unit is engaged in the manufacture of Partially Oriented Yarn (POY), Polyester Filament Yarn (PFY) and Polyester Chicks. The unit is situated at Village Bamangam, Dist. Vadodara. 2.2) The Unit was served with three show cause notices, alleging diversion of exempted goods meant for supply and consumption by an Export Oriented Unit, at material time, the brief details of which are as under: i) SCN No.V.CH 54(15)23/RV/ DHalol/ Commr/04 dated 09.12.2004 seeking to impose penalty on the petitioner (though duty is demanded from M/s. Resham Exports). ii) SCN No.V.CH 54(15)22/RII/ MAK/Commr/04 dated 19.09.2004 seeking to demand duty of Rs. 69,11,952/from th....
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....awn the attention of this Court to Section 129C(5) of the Customs Act, 1962 ("the Act"), which specifically provides that if the members of a Bench differ in opinion on any point, the point shall be decided according to majority's opinion, but if the members are equally divided, they shall state the point or points on which they differ and make a reference to the President who shall either hear the point or points himself or refer the same for hearing by one or more of the other members of the Tribunal, which shall be decided according to the opinion of the majority of these members of the Tribunal, who have heard the case, including those who first hear it. (4) Placing reliance on the Division Bench judgment of this Court rendered i....
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....es appearing on behalf of the respective parties, and after appreciating Section 129C(5) of the Act, we are of the opinion that the impugned difference of opinion rendered by the Respondent no.3 does not contain the point or points on which the members of Respondent no.3 have differed. In the case of Colour tex (supra), wherein this Court on a similar facts had held as under: "15 As can be seen from the extract of the reference made by the Division Bench of CESTAT the so called difference of opinion requires the Third Member to decide whether the appeals are required to be rejected as held by the Member (Technical) OR the appeals are required to be allowed as held by Vice President. On a plain reading it is apparent that no point o....
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.... that where Members of Tribunal differ in opinion on any point, in the first instance, the point shall be decided according to the opinion of the majority; only in the event where the Members are equally divided, the Members are obliged to state the point or points on which they differ and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Tribunal, and such referred point or points shall be decided according to the opinion of the majority of these members who have heard the case, including those who first heard it. 17 The provision is therefore comprised of two parts. In a case where the Bench consists ....
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....n (5) of Sec. 129C of the Act stands out in contrast and does not permit disposal of the appeal. In fact, after the President or the Third Member, who is assigned the case for hearing on the point or points of difference, renders his opinion the appeal goes back to the Bench which originally heard the appeal and has to be decided in accordance with the majority opinion. This becomes absolutely clear when the concluding portion of the provision is read which talks of deciding according to the opinion of the majority of the members who have heard the case, including those who first heard it. 19 Therefore, the members who expressed dissenting opinions are bound by the statute to state the point or points of difference and make referen....