Per J.H. Joglekar :

This is an application for rectification of an error apparent on the face of the questions framed by the two members who had heard the Appeal No. C/328/87-B2 when making a reference to the Third Member for settlement of the difference of opinion between them. For case of reference, the questions framed are reproduced below:-

"In view of difference of opinion, the following questions arise for determination by Third Member on reference, by Hon'ble President.

Whether the appellants are entitled for registration of contract under Project Import Regulations, and entitled for the benefit of conecessional rate under Customs Heading 84.66 and the benefit of Notification No. 116/79-Cus dt. 1.6.1979 as held by Member (Judicial) (Shri S.L. Peeran).

The appellants are not entitled to the benefit of Project Import and to the benefit of the Notification as held by Member (Technical (Shri J.H. Golekar)."

2. It has been claimed by the Learned Advocate on behalf of the appellants that the reference to Notification No. 116/79-Cus dt. 1.6.79 is not relevant to the issue before the original Bench. It is submitted that the mentioning of the Notification in the questions framed is redundant.

3. We have heard Shri A.K. Jain, the Learned Advocate and Ms. R. Pant, the Learned SDR.

4. Section 129B of the Customs Act relates to the orders of the Appellate Tribunal. Sub-section (1) thereof prescribes the scope of the Appellate orders. Sub-section (2) prescribes that where the Appellate Tribunal has made an order under sub-section (1) and where there is a mistake apparent from the records thereof, it may rectify such an apparent mistake, on the plea advance by the either of the parties to the appeal. In the present case, the reference made to the Third Member cannot be termed to be an order as described under sub-section (2) of Section 129B. It would be an order only when the Third Member agrees with one of the two referring members. On this count, we find that mis application for rectification of mistake has no validity and need not be considered by us.

5. Even if we have held so, it is necessary to make some observations as to be place in the discussions of Notification No. 116/79-Cus and its inclusion in the reference made to the Third Member. The Member (Judicial) in his order has dealt exhaustively with the application of the said Notification in paragraph 5 of his order. He has also in the concluding portion referred to the said Notification and has opined that the lower authorities were required to have granted the benefit under the said Notification . The Learned Member has taken a view taking into account this Notification as also other provisions of law discussed in his order. It is not for the parties in dispute to comment upon the relevance or otherwise of any provisions of law discussed in an order made by the member of the Tribunal. That right can be exercise only by an authority sitting in appeal over the order passed by the member where such a point is contested before the Appellate Authority. In fact, even that Member to whom the reference is made, is not empowered to question the questioned framed for reference. It has been held by the Tribunal in the case of Jainsons Clothing Corporations Vs. Collector of Central Excise, 1995 (76) ELT 76 = 1995 (6) RLT 819 (CEGAT-C), that the powers of the Third Member of the Tribunal are very limited. He has to agree either with Member (Judicial) or Member (Technical). The same view has been expressed by the Calcutta High Court in their decision in the case of Govind Ram Agarwal Vs. CC, 1993 (67) ELT 215 (Cal.). In this case the Third Member on receiving the reference did not hear the case but referred the matter back to the President to constitute the Larger Bench to hear the case. In their decision, the High Court observed that it was incumbent upon the Third Member to hear the point or points on which the members of the Bench in the Tribunal as originally constituted differed and