Appellate Tribunal – Difference of Opinion between Members of Bench on factual matters – Advice to Tribunal – Disagreement and dissent to be avoided by meaningful discussion and continuous dialogue.

In the initial order passed on 6-8-2013 by the CESTAT, there was difference of opinion between the Member (Judicial) and the Member (Technical). The Member (Judicial) was of the opinion that for the reasons indicated by him, the appeals of the assessee deserved to be allowed. Whereas the Member (Technical) passed a separate order upholding the Department’s stand, but yet remanded the case to the Commissioner for ascertaining the value of the impugned goods by constituting a Panel in accordance with the Departmental instructions.

On account of this difference of opinion, the matter was referred by the President, CESTAT to a Third Member. In the meanwhile, the importers filed rectification of mistake applications pointing out the alleged mistake in the initial order of the Tribunal dated 6-8-2013. As was expected, even when these applications for rectification were placed before the same Bench, the Members thereof differed. The applications were admitted by the Member (Judicial) whereas the Member (Technical) recorded a separate order. That separate order of the Member (Technical) did not conclude the applications for rectification of mistake. Thereafter, the rectification applications were finally decided on 8-12-2014 but recording a dissent and difference of opinion between the two Members.

Then, this difference of opinion was also marked and referred to the same Third Member who was to resolve the disagreement in the initial order dated 6-8-2013.

The Hon’ble Court observed that this was one more instance where the Members of the Bench have differed and recorded dissenting opinions. By consent of both sides, the appeals decided by the initial order dated 6-8-2013 were restored to the file of the CESTAT for being decided afresh in accordance with law. The Hon’ble Court further advised that the Tribunal should bear in mind the caution administered by the Court in case of the Starto Electro Equipments Pvt. Ltd. vs. UOI 2015 (318) ELT 55
(Bom) and all such decisions rendered prior thereto. Why should there be a difference of opinion on factual matters? By some meaningful discussion, continuous dialogue and by not demonstrating unnecessary haste, disagreements and dissents can be avoided.