ORDER
Harish Chander, President
1. The matters were called. Shri G.L. Rawal, the learned advocate with Shri A. Samad, Advocate, has appeared on behalf of the appellants and Shri V.C. Bhartiya, the learned JDR, for the respondent. Shri Rawal drew the attention of the Bench to the Hon’ble Calcutta High Court judgments in the appellants’ own case viz. 566/84, dt. 22-6-1987 of M/s. Jainsons Clothing Corporation; 401/84, dated 2-6-1987 of M/s. Jain Exports (P) Ltd. and 398/84, dated 22-6-1987 of M/s. Biswanath Traders & Investment (P) Ltd. By these orders the writ petitions filed by the appellants have been allowed. Shri Rawal stated that as per his information, the Revenue being not satisfied with the order passed by the Hon’ble Judge has filed an appeal before the Division Bench of Calcutta High Court. Shri Rawal further stated that he had appeared once in this matter before the Division Bench of the Calcutta High Court and to his information the appeal is still pending. He left it to the discretion of the Bench for passing appropriate orders in accordance with law.
2. Shri V.C. Bhartiya pleaded that he does not know whether any appeal is pending before the Division Bench or not. He further stated that as a third Member, a recommendation should be must for remanding the matter to the original Bench and appropriate order be passed on the basis of the writ petition.
3. We have heard both the sides. The point of difference was referred to the President vide order dated 28-1-1987 whereas the judgment of the Calcutta High Court order is dated 2-6-1987 in respect of M/s. Jain Exports (P) Ltd. and 22-6-1987 in respect of M/s. Jainsons Clothing Corporation and M/s. Bis-wanath Traders & Investment (P) Ltd., which are after the reference of point of difference to the third Member. The reference was made in terms of Section 129C(5) of the Customs Act, 1962. Relevant sub-Section is reproduced below :-
“129C(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the President for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it.”
Hon’ble Allahabad High Court in the case of Jan Mohammed v. C.I.T., reported in AIR 1953 Allahabad 119 had held in para 2 as under :-
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4. In view of the above decision, the powers of the third Member of the Tribunal are very limited. We have to agree either with Member (Technical) or Member (Judicial). We do not want to sit in judgment over the judgment of Hon’ble Calcutta High Court. We are told that the appeal against the similar order is pending before the Division Bench. Judicial Propriety requires that the matter should be kept pending till the decision by the Division Bench in the appeal pending before the Hon’ble High Court. Accordingly, we adjourn the matter sine die. It is open to either side to approach the Tribunal as and when the appeal is disposed by the Division Bench of the Hon’ble Calcutta High Court.
5. A copy of this order be supplied to both sides.