Case Note & Summary
The case involves an appeal by M/s. Kelkar Trading Corporation and Shri Chintamani Shridhar Kelkar against the Commissioner of Central Excise, Mumbai-V. The dispute arose from a show cause notice dated 30th September 2001 alleging that the appellants manufactured stators of sub-heading 8503.00 by riveting and cleating of chapter sub-heading 8312.00 and removed the goods as second sale under the guise of trading of 'Electrical Motor Stampings' without payment of duty. The goods were seized under panchanama dated 5/6.1.2001. The matter was heard by a bench of two members who differed in opinion, leading to a reference to a third member. The third member gave an opinion, and the bench passed a remand order. The appellants challenged the remand order as ambiguous. The High Court framed two substantial questions of law: (1) whether the third member could go beyond the specific question referred and take a view different from both members, and (2) whether the remand order was ambiguous and equivocal. The court heard arguments and decided to dispose of the appeal at that stage. The court held that the third member cannot go beyond the referred question and that the remand order was indeed ambiguous. Consequently, the court allowed the appeal, set aside the remand order, and remanded the matter back to the Tribunal for fresh consideration in accordance with law.
Headnote
A) Central Excise - Third Member Reference - Scope of Third Member - Central Excise Act, 1944, Section 35G - The issue was whether the third member could go beyond the specific question referred and take a view different from both members who referred the question. The court held that the third member cannot go beyond the referred question and must confine to the difference of opinion. (Paras 2-3) B) Central Excise - Remand Order - Ambiguity - Central Excise Act, 1944, Section 35G - The court examined whether the remand order passed by the bench based on the third member's opinion was ambiguous and equivocal. The court found the remand order to be ambiguous and set it aside, remanding the matter for fresh consideration. (Paras 2-3)
Issue of Consideration
Whether the third member could go beyond the specific question referred and take a different view from both members, and whether the remand order passed by the bench is ambiguous and equivocal.
Final Decision
Appeal allowed. The remand order passed by the Tribunal is set aside. The matter is remanded back to the Tribunal for fresh consideration in accordance with law.
Law Points
- Third member cannot go beyond referred question
- Remand order must be unambiguous
