D.A. MEHTA, J.

1. The petition challenges the opinion (termed to be an order) dated 7th March 2006 recorded by respondent No.4 herein and communication dated 28th March 2006 fixing the hearing of the matter before Third Member of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (the Tribunal). On 19th December 2003, an Order in Original came to be made by respondent No.6 which was challenged by way of appeal before the Tribunal. On 12th August 2005, the Bench which was assigned the appeals, heard the appeal and one of the Members allowed the appeal filed by the petitioners while the other Member rejected the appeal filed by the petitioners. The President of the Tribunal in exercise of powers under Section 129C(5) of the Customs Act, 1962 (the Act), placed the matter before the Third Member for hearing the reference on difference of opinion. On 10th October 2005, when the matter was listed before the Third Member for hearing, petitioners invited attention to a Rectification of Mistake Application filed by the petitioners before the Tribunal requesting that the hearing of the matter before Third Member may be adjourned till the original Bench decides the Rectification of Mistake Application. The Third Member rejected the application for rectification of mistake.

2. When the matter was carried by way of petition before this High Court being Special Civil Application No.20771 of 2005, vide order made on 14th October 2005, the High Court recorded as under while rejecting the petition on other issues:-

"[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] In these circumstances, the Third Member could not have passed the order dated 10/10/2005 (Annexure "D"). Accordingly, the said order dated 10/10/2005 (Annexure "D") is hereby quashed and set aside."

When the Third Member took up for hearing the matter, it was pointed out that, in absence of any point or points of difference recorded by the original Bench which heard the appeal, the Third Member could not proceed to hear the matter. However, as the Third Member was not agreeable to the submission made, the matter was brought before the High Court by way of Special Civil Application No.21526 of 2005 seeking appropriate direction. The petitioners were permitted to withdraw the petition so as to approach the President of the Tribunal.

3. Accordingly, the petitioners moved an application before the President, but the Registry of the Tribunal forwarded the application to the Bench who rejected the same. The order dated 6th December 2005 made by the Bench was, thus, challenged by way of one more petition being Special Civil Application No.24130 of 2006. The said petition has been decided vide judgement rendered on 12th January 2006 as reported in 2006 (198) ELT 169 (Gujarat).

4. In the meantime; it appears that, on 9th/11th December 2005, one of the Members constituting the Bench originally, namely, Shri Moheb Ali M., Member (Technical) retired.

Vide communication dated 8th February 2006, the petitioners, through their Advocates, sought direction from the President for making a reference to the Third Member only after the Bench formulated and stated specific point or points of difference. On 15th February 2006, the Registry of the Tribunal in