The main legal point established in the judgment is the requirement for the Division Bench to comply with the provisions of Section 129c (5) of the Customs Act,1961 when making a reference, and the invalidity of a reference that does not state the point or points of difference.

( 1 ) THIS petition primarily and substantially challenges order dated 6/12/2005 made by the customs, Excise and Service Tax Appellate Tribunal (CESTAT), West Zonal Bench, Mumbai as well as the reference made by Division Bench of CESTAT on 12/8/2005.

( 2 ) HEARD Mr. K. B. Trivedi, learned Senior Advocate appearing on behalf of the petitioner and mr. R. J. Oza, learned Additional Standing Counsel for central Government appearing on behalf of respondent no. 2. Taking into consideration the controversy and necessity of finally disposing of the question brought before the Court the petition is taken up for final hearing and disposal today. Rule. Mr. Oza waives service. BRIEF FACTS.

( 3 ) ON 19/12/2003 vide Order-in-Original made by respondent No. 2 redetermining the FOB value of the exports and consequent reduction in DEPB credit, the petitioner was held to be not entitled to the originally granted credit. The said order came to be challenged by way of an Appeal before CESTAT. On 12/08/2005 the Division Bench comprised of Vice president and Member (Technical) heard the appeal and both of them expressed differing opinions: The vice President allowed the appeal filed by the petitioners while Member (Technical) rejected the appeal. Thereupon both of them made reference stated to be in terms of provisions of Section 129c (5)of the Customs Act,1961 (the Act ). The order making the so called reference reads as under:"the following difference of opinion is placed before the Honble President for reference to Third member for resolving the difference :- whether the appeals are required to be rejected as held by Member (Technical) or whether the appeals are required to be allowed as held by Vice President. Sd/- Sd/- (Moheb Ali M) (Jyoti Balasundaram) member (Technical) Member (Judicial)

( 4 ) THE difference of opinion was accordingly referred to the President of CESTAT who assigned the matter to a Third Member to hear on the point on which there was difference of opinion between the members constituting the original Bench. Before the Third member took up the hearing, the petitioners moved an application seeking Rectification of Mistake on 29/9/2005 under Section 129b (2) of the Act. While the application for rectification was pending, the reference came up for hearing before the Third member on 10/10/2005. The petitioner requested for adjournment on the ground of pendency of the rectification of Mistake Application, but the request was turned down. The Third Member called for the papers of the Rectification of Mistake application and disposed of the same on the same day stating that there was no scope for filing the application for Rectification of Mistake at the stage of hearing on the point of difference.

( 5 ) THE said order dated 10/10/2005 came to be challenged by way of Special Civil Application no. 20771 of 2005 and this Court vide judgment and order dated 14/10/2005 quashed and set aside the said order dated 10/10/2005. In paragraph No. 5 of the said judgment it was stated by this Court :"5. It is not necessary to deal with the merits of the controversy between the parties. Section 129c (5) of the Act is, couched in clear unambiguous terms. The Third Member who is assigned the matter by the President is required to hear only on the point or points on which there is difference of opinion amongst the Members of the Bench who heard the appeal originally. The Third Member can decide only such point or points because the President can make reference only on such point or points of difference of opinion. The Third Member cannot derive any further jurisdiction because the matter has thereafter to be placed before the bench which originally heard the appeal and the appeal is required to be disposed of in accordance with majority of opinion of the members".

( 6 ) THE matter therefore, came up for hearing once again on 20/10/2005 before the Third Member. On behalf of the petitioner it was pointed out that as there was no statem