In a matter involving valuation of goods, the appeal against the tribunal's decision lies direct to the Supreme Court. In Union of India vs Kamlakshi Finance Corporation Ltd-1991 (55) ELT 433 (SC)- the Supreme Court affirmed its supremacy. "The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by subordinate authorities." However, the trend of difference of opinion among members of the tribunal seems to be of quite some concern. It not only delays the finality on issues of great relevance in administration of tax laws but also causes confusion and uncertainty. Take a recent illustration.

The Nizam Sugar Factory produced carbon dioxide in impure form as a byproduct. It did not pay excise duty on it. On July 17, 1987 the department issued a notice demanding duty for the period 1982-83 to 1986-87. The collector confirmed the demand. The Nizam Sugar Factory decide to contest the order. In Nizam Sugar Factory Ltd vs Collector of Central Excise, Hyderabad - 1998(26) RLT 461(CEGAT) - the tribunal was called upon to give its decision on two issues. Does production of impure carbon dioxide amount to "manufacture"? Was the show cause notice time-barred under Section 11A of the Central Excise Act?

The tribunal confirmed the collector's view that impure carbon dioxide was liable to duty. However, stalemate arose on the question whether the demand notice issued for a period of five years was within the time limit prescribed when it was in the knowledge of the officials that the assessee was manufacturing impure carbon dioxide but not paying excise duty. Section 11A mandates that longer period of five years can be invoked only when duty is not paid by reason of fraud, collusion or any willful misstatement or suppression of facts. Interestingly both the sides could cite some earlier decisions of the tribunal in their favour. Faced with this peculiar situation, the two members of the tribunal felt helpless. They decided to place this issue before the tribunal's president for reference to a larger bench.

The larger bench constituted by the president comprised five members, three judicial members and two members (technical). The larger bench had to consider weighty arguments and scrutinise about 40 judgments and decisions. There was sharp difference of opinion among the members. Surprisingly, and surely by coincidence, there was division on "caste basis". The two judicial members came to the conclusion that notice issued beyond the period of six months from the date of knowledge by the department of suppression, fraud etc, would be barred by limitation under proviso to Section 11A. Taking a contrary position, their three other brothers, members (technical), chose to remain united. Their conclusion was influenced by an earlier decision - Pure Drinks (P) Ltd-1997 (90) ELT 348 (T) - which held that "the limit of five years will run from the date of alleged removal and this cannot be curtailed by the intervening development of officers detecting the offence and coming to know of the non-payment of duty".Ultimately the issue was decided by the majority view in the Nizam Sugar Factory vs Collector of Central Excise, Hyderabad-1999 (114) ELT 429 (tribunal).

Sharp difference of opinion among members is not without implication. Many expect that the decision of one bench should be binding on other benches. Different decisions of the tribunal on the same issue lead to uncertainty and cause violence to the principle of uniformity. Many feel that it would be worthwhile if members discussed their differences and strove to reach consensus. After all, any minority decision is only of academic interest.