Section 86 of the Finance Act, 1994 read with section 35D of the Central Excise Act, 1944

Service Tax : It is possible for Members of Tribunal to record differing opinions on any point including 'facts'; however, Tribunal must reduce difference of opinions and resolve them expeditiously and on priority basis to avoid judicial uncertainty
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[2014] 52 taxmann.com 138 (Bombay)
HIGH COURT OF BOMBAY
Zenith Computers Ltd.
v.
Commissioner of Central Excise*
S. C. DHARMADHIKARI AND G.S. KULKARNI, JJ.
CENTRAL EXCISE APPEAL NO. 31 OF 2013†
APRIL  11, 2014
Section 86 of the Finance Act, 1994 read with section 35C of the Central Excise Act, 1944 and section 129B of the Customs Act, 1962 - Appeals - Rectification of Mistakes/Review - Appellate Tribunal - Member (Judicial) held that assessee's activity of brand promotion is not liable to service tax under 'Business Auxiliary Service' and did not take up other aspects - Member (Technical) disagreed and held that services are liable to service tax and also examined issue of export of service and limitation, etc. - During pendency of difference of opinion, assessee filed rectification of mistake (ROM) application on ground that Member (Judicial) should also have expressed his view on aspect of 'export', 'limitation', etc. without which reference to third member was not proper - Tribunal held that as Member (Judicial) gave his findings on merit (in favour of assessee), therefore, he was not required to give findings on other issues - On appeal to High Court - HELD : Power of rectification of mistake is not akin to review; no detailed scrutiny or examination of record again can be permitted - It cannot be equated or termed as substantive proceedings - Entire matter was open before Third Member and assessee can raise any point before Third Member and even after order of Third Member, final order of Tribunal would be open for challenge - Hence, present appeal was not maintainable [Paras 8 to 10] [In favour of revenue]
Section 86 of the Finance Act, 1994 read with section 35D of the Central Excise Act, 1944 and Section 129C of the Customs Act, 1962 - Appeals - Procedure - Appellate Tribunal - As per section 129C(5), since difference in opinion can be on any point, same can be on factual matters as well - It is possible for Members of Tribunal to record differing opinions on any point including facts - Tribunal must reduce difference of opinion matters but acting in co-ordination - Further, Tribunal must dispose of difference of opinion matters expeditiously and on priority basis to avoid judicial uncertainty [Paras 14 to 18] [In favour of revenue]
Section 86 of the Finance Act, 1994 read with section 35C of the Central Excise Act, 1944 and Section 129B of the Customs Act, 1962- Appeals - Orders of - Appellate Tribunal - In hearing appeal, Tribunal cannot substitute its views in matter merely on ground that, in its opinion, facts of case call for a different conclusion - Discretion exercised vide a discretionary order can be interfered with only if discretion is exercised arbitrarily, or capriciously or perversely or in ignorance of settled principles of law regulating such matter - Due regard and respect must be given to opinion of original Authority/Appellate Authority - If view taken is possible, plausible and probable, then, merely because another opinion can also be rendered on same facts, every order under appeal need not be interfered with - If Tribunal follows aforesaid principle, there would be few occasions for Tribunal Members to differ on factual matters [Paras 16 & 17] [In favour of revenue]
Words and Phrases : 'Adjudication', as generally defined