Per Justice R.M.S. Khandeparkar : Heard learned Advocate for the appellant and learned DR for the Department.

2. When these appeals came up for hearing before the learned single Member on 30.08.2007, it was noticed by the learned single Member that there was difference in the opinions expressed in different decisions of the Tribunal on the issue as to whether service tax in relation to the goods transport service received by party during the particular period can be recovered by issuance of show cause notice beyond three years thereafter and in that connection the learned single Member noted the decisions in the matter of BPL Engineering Ltd. Vs. CST - 2006 (77) RLT 409 (CESTAT-Ban.)=2006 (3) STR 747 (Tri.-Bang.), R.K. Marble Pvt. Ltd., - 2007-TIOL-29, CCE, Jaipur Vs. Mangalam Cement Ltd., - 2007 (7) STR 673 (Tri.-Del.). He also referred to the decisions of the Apex Court in the matter of CCE, Meerut-II Vs. L.H. Sugar Factories Limited Vs. CCE, Meerut - 2005 (70) RLT 133 (SC)=2005 (187) ELT 5 (SC), Gujarat Ambuja Cements Ltd. Vs. Union of India - 2005 (67) RLT 469 (SC)=2005 (182) ELT 33, S.S. Gadgil Vs. Lal & Co. (1964) 53 ITR 231 (SC), K.M. Sharma Vs. ITO (2002) 254 ITR 772 (SC) and decision of Kerala High Court in Varkey Jacob and Co. Vs. CIT [2005] 275 ITR 146 (Ker. HC). Consequently, the learned single Member thought it appropriate to refer the matters to a larger bench. Accordingly, pursuant to the order passed by the President of the Tribunal, the matters were placed before the Division Bench.

3. The matters came up for hearing before the Division bench on 30.01.2009 wherein the Division Bench referring to the decisions in the matter of BPL Engineering Ltd. and Mangalam Cement cases observed that there are conflicting views expressed by two benches on the relevant issue and therefore the parties agree that the matter should be referred to a three Member Bench. The Division Bench passed the following order:-

"After hearing both the parties, we find that there is conflicting decisions of the different Division Benches and therefore, we direct the registry to place this matter before the Hon'ble President for constituting three Members Bench to decide the issue".

4. Considering the order of the Division Bench of the Tribunal, matter was fixed for hearing and upon hearing the learned Advocate for the appellant and learned DR, it is found necessary to pass the following order.

5. The matters in question arise under the provisions of Finance Act, 1994 relating to the service tax. Section 86 of the said Act deals with the appeals to the Appellate Tribunal and sub-para of Section 86 (7) read thus "Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944". Section 35B of the Central Excise Act, 1944 deals with the powers of Appellate Tribunal. Sub-section (1) thereof that the provision of (1), (2), (5) and (6) of Section 129C of the Customs Act, 1962 shall apply in the discharge of its function under the said Act as they apply in discharge of this function under the Customs Act, 1962.

6. Section 129C of the Customs Act, 1962 deals with the procedure and powers of the Appellate Tribunal. Sub-section (5) thereof provides that "if the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority; but if the members are equally divided, they shall state the point or points on which they differ and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of these members of the Appellate Tribunal who hav