JUDGMENT [Per B. P. Colabawalla J.] 1. The present Appeal has been filed by the Commissioner of Customs (C.S.I. Airport), Mumbai challenging the order dated 6th March 2012 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (hereinafter referred to as “CESTAT”) whereby the Appeals filed by the Respondents herein were allowed. Though the 2 Members of the CESTAT had a difference of opinion on certain aspects which have been referred to a Third Member, they were in agreement on some other aspects of the matter, and hence the present Appeal. 2. The facts stated briefly are that the Airport Intelligence Unit effected a seizure of USD 70,000/- from Respondent No.1 departing for Dubai from CSI Airport on 23rd February, 2004. During the course of investigations, it was revealed that Respondent Nos.2 to 4 were involved in the current case and also in five previous visits abroad wherein an amount of USD 3,50,000/- was stated to have been carried out of the country illegally by the Respondent No.1. After the investigation, a show cause notice was issued to all the Respondents. Thereafter, the matter was adjudicated by the Commissioner of Customs (AP) and vide his order-in-original dated 21st November 2007 he ordered :-- (a) Confiscation of USD 70,000 and imposition of penalty of Rs.4,00,000/- on Respondent No.1; (b) A Penalty of Rs.5,00,000/- on Respondent No.2; (c) A Penalty of Rs.5,00,000/- on Respondent No.3. The Commissioner of Customs also upheld the confiscation of USD 3,50,000 and imposed penalty for the previous visits amounting to Rs.15,00,000/- each on Respondent Nos.1 to 3 and ordered release of foreign currency seized from the premises of Respondent No.4 by adjusting the same against the penalties imposed on Respondent Nos.2 and 3. 3. Being dissatisfied with the said order, the Respondents filed separate Appeals before the CESTAT. The CESTAT passed a common order on 6th March 2012 wherein there was a difference of opinion on certain issues between the Member (Judicial) and the Member (Technical) and the matter has thereafter been referred to a third Member (Vice President, HOD) and the decision of the third Member – majority is awaited. 4. However, the two Members of the CESTAT were in agreement on the following points :- (a) Order of confiscation of USD 3,50,000 was set aside. 4. However, the two Members of the CESTAT were in agreement on the following points :- (a) Order of confiscation of USD 3,50,000 was set aside. (b) Penalties of Rs.15,00,000/- on Mr Pankaj Kishore Jhunjhunwala (Respondent No.1), Rs.15,00,000/- on Mr Om Prakash Jhunjhunwala (Respondent No.2) and Rs.15,00,000/- on Mr Satish Choudhary (Respondent No.3) were set aside. (c) Penalty on Mr Om Prakash Jhunjhunwala (Respondent No.2) were dropped. (d) Adjustment of foreign currency seized from M/s Monalisa Forex Services Pvt.Ltd. against the dues of other appellants was held to be not sustainable and hence set aside. 5. Being aggrieved by the order of the CESTAT, the Appellant has approached this Court by way of an Appeal under section 130 of the Customs Act 1962. Mr Jetly, learned counsel appearing on behalf of the Appellant, submitted that this Appeal raises substantial questions of law as more particularly framed at page 6 of the Appeal paper-book. It was submitted by Mr Jetly that the situation in this case is a peculiar one, particularly when the CESTAT consisting of Member (Judicial) and Member (Technical) did not agree on the final order to be delivered. Mr Jetly submitted that despite the fact that there was a difference of opinion between the two Members, they were in agreement on the points mentioned above and hence these points arise as substantial questions of law for the consideration of this Court and prayed for admission of the Appeal. 6. On the other hand, Mr Shah, learned counsel appearing on behalf of the Respondents, submitted that the Appeal is entirely premature. He submitted that today the matter has not attained finality. Though it is true that the Members were in agreement on the points mentioned earlier in this order, the matter was still at large before the CESTAT and the reference had been made to a third Member which was still pending. He submitted that once the third Member either agrees with the Member (Judicial) or with the Member (Technical), and a majority view is formed or arrived at, that the Appellant could challenge the order at that stage in accordance with law. He therefore submitted that at present, the Appeal does not raise any substantial question of law and deserves dismissal. 6. He therefore submitted that at present, the Appeal does not raise any substantial question of law and deserves dismissal. 6. With the assistance of both the learned counsel, we have perused the Memo of Appeal and the Annexures thereto including the impugned order passed by the CESTAT. We have noticed that almost an identical issue came up before this Court in the case of Zenith Computers Ltd. v/s Commissioner of Central Excise, in Central Excise Appeal No.31 of 2013 wherein this Court by its judgment dated 11th April 2014, in almost identical facts, dismissed the Appeal of the Assessee. In that case, noting that once the third Member takes a decision either agreeing with the Member (Judicial) or the Member (Technical), either party is not remedy-less to challenge the decision of the majority, dismissed the Appeal on the ground that it was premature but keeping all rival contentions open to be raised at an appropriate stage. 7. On going through the facts of the present case, we find force in the argument of Mr. Shah that the Appeal filed in the present case is premature at this stage and does not raise any substantial question of law to be considered by this Court. Following the judgement of this Court in the case of Zenith Computers Ltd. (supra) we dismiss this Appeal. However, it is clarified that once the third Member passes his order, either agreeing with the Member (Technical) or Member (Judicial), both the parties shall be at liberty to challenge the view of the majority including on the issues on which the original two Members were in agreement set out earlier in this order. We further clarify that we have expressed no opinion on the rival contentions between the parties and particularly on the issues on which the original two Members were in agreement in favour of the Respondents and against the Appellant. With these clarifications, the Appeal stands dismissed. There shall be no order as to costs.