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TMI Blog2010 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs. Chennai. The appeal was at the instance of the petitioner posted for hearing on 4-6-2009 on which date argument was advanced on both sides for considerable length and the members of the Appellate Tribunal has after the hearing is concluded pronounced in open court the gist of decision in writing as "Appeal allowed" and both the members have signed the same on the same day and postponed the pronouncement of the detailed order by the Member (Technical) by name C. Karthikeyan with endorsement made by both the Vice-President and Member to the effect that it is for the Member (Technical) to pass order. While the parties were awaiting detailed order following the gist of decision, a note was forwarded to the Vice President on 22-6-2009 by the Member Technical for re-hearing of the appeal on certain grounds and the same was endorsed by Vice President of the Tribunal and on the basis of the note dated 22-6-2009, the appeal was posted for rehearing on 30-6-2009 and the same compelled the petitioner to come forward with the Misc. Application No. C/MISC./252/09 praying to pass detailed order in line with the gist of the final decision pronounced in the open court on4-6-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order being delivered and pronounced from the date of conclusion of the hearing of the arguments, the same shall apply mutatis and mutandis to the cases where gist of the decision is pronounced and the same shall be deemed to have been "not heard" and will have to be listed for fresh hearing only after obtaining prior order in writing from the President of Tribunal, are contrary to relevant provisions of law and are without any jurisdiction. 4. Per contra, the learned counsel for the respondents would seriously contended that the president is empowered to regulate the functioning of the benches in all the matters in discharge of its function and the circular is issued only in exercise of power vested upon the president and the directions was so issued only in pursuance of the in-direction issued in the decision made by Supreme Court (i) Anil Rai v. State of Bihar, reported in 2009 (233) E.L.T. 13 (Supreme Court) = 2009 (13) S.T.R. 465 (S.C.); (ii) R.C. Sharma v. Union of India and Others in AIR 1976 Supreme Court 2037; (iii) Division Bench judgment of Delhi High Court reported in 2008 (231) E.L.T. 47 (Del.) = 2008 (12) S.T.R. 419 (Del.) in Dinkar Khindria v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court have also issued various directions in order to avoid delay in passing orders and the Bombay High Court has in the judgment reported in 2008 (232) E.L.T. 780 (Bom.) = 2009 (13) S.T.R. 11 (Bom.) (cited supra) specifically directed the President of ITAT to frame and laid down guidelines in the light of Supreme Court judgment Anil Rai case. The first respondent/President CESTAT has even in the order issued by him referred to the earlier directions of the Supreme Court and Bombay High Court and referred to the circumstances under which order came to be issued. The attention of this court is also drawn to the relevant provisions of Section 129(B)(6) of the Customs Act (herein after referred to as 'Act') and Rules 4, 11, 16(5) & (6), 28(A)(7), 31(A), 40, 41, 44(1), 47 of CESTAT which deal with the power of the President to issue various orders in the matter of entertaining any appeal or applications, conduct of appeal or application, Constitution of Benches for hearing appeal, allotment of work, among benches, hearing of reference application and application for rectification of mistakes by the benches, various administrative general or special orders to Registrar and over al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detailed order to be passed." The reading of the same would reveal that it is applicable to cases when there is failure on the part of either single member or Division Bench of the tribunal to deliver or pronounce the detailed order even after three months from the date of conclusion of the hearing of the arguments or from the date of pronouncement of gist of decision. As rightly pointed out by the learned counsel for the respondents the reopening of the appeal filed by the petitioner in appeal No. C/07/2009 for rehearing is on30-6-2009and in suo motto done much before the issuance of this order and the order is hence not applied to the petitioner's appeal proceedings. 13. As a matter of fact, the petitioner has already made representation to Registrar as well the President and the Deputy Registrar has in turn sought for clarification regarding the applicability or otherwise of clauses 4 and 5 of the order to the petitioner's appeal in which four months was already lapsed after the pronouncement of the operative portion of the order. The representation given by the petitioner to the President and the clarification sought for by the Deputy Registrar from the Registrar are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e final order is given at the top of the detailed order as 22-5-2009 and the detailed order is signed by the Member (Technical) on 28-10-2009 and the Vice-President on 10-2-2009. 16. As already referred to the main cause of action for filing both the writ petition is the reopening of the appeal, for rehearing where the gist of decision is already passed in favour of the petitioner. As already referred to the appeal was heard in detail and the gist of the decision was pronounced in open Court appeal allowed and the same was recorded signed and dated by both the members on the same day and the records are also entrusted to Member (Technical) by the Vice-President/other Member of the Bench on the same day for recording detailed order. The Member (Technical) in his note dated22-6-2009forwarded to Vice-President explained the ground on which the matter is to be reheard. It is stated in the note enclosed at Page 2 of the typed set of paper as follows : "We allowed the appeal accepting the Counsel's plea that ratio of Virion case is that the cap of 50% of FOB value for benefit of Not. No. 2/95-C.E. did not apply and hence though there were no exports, benefit of 2/95-C.E. was avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on which the gist of the decision was pronounced. In such cases, the date of the final order shall be the date on which all the Members of the Bench sign the order. If they sign on different dates, the last of the dates/will be the date of the order." 18. The reading of the same reveals that the tribunal is empowered to pass its orders in two modes either by immediate dictation or by reservation in both the case the final date of the order the date of dictation on the bench and the date on which the final order is pronounced. The other mode is by pronouncing the gist of decision without detailed order and thereafter to pronounce the detailed order in such cases the detailed order shall contain the dates on which gist of decision is pronounced the date or dates on which the members sing in the detailed order and in such cases where the order is signed on different dates the date of the order is the last date on which either both or any of the members sign the order. 19. The combined reading of both Sec. 129(b) of the Act and Rule 26 would go to show that the appellate tribunal is after giving opportunity to the parties of being heard empowered to pass any order confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Department v. Shukla and Brothers in JT 2010 (4) SC 35 = 2010 (254) E.L.T. 6 (S.C.); (16) Shivsagar Veg. Restaurant v. Assistant Commissioner of Income Tax, Mumbai in 2008 (232) E.L.T. 780 (Bom.) = 2009 13 S.T.R. 11 (Bom.); (17) Suga Ram @ Chhuga Ram v. State of Rajasthan and Others in AIR 2006 SC 3258; and (18) Joint Commissioner of Income Tax v. Saheli Leasing & Industries Ltd., in 2010 (253) E.L.T. 705 (S.C.). 23. The law laid down in the cases cited on the side of the petitioner is, that once the order is passed by the members of CESTAT, it cannot be altered by such members unless statue provides for review and only after hearing of parties and the power of review is wider than power of rectification and the power of rectification is only to rectify the mistake apparent on the face of the records and it may not be exercised on the ground, that the decision was erroneous on merits which would be the province of the court of appeal and any error which has to be established by a long drawn process of reasoning on points or where there may be considerably two opinions it can be hardly said to be any error apparent on the face of the record. 24. Whereas, the law laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the judgments cited on the side of the respondents are of the view that the tribunal has inherent powers of review such power of review is recognised by the Supreme Court and the Division Bench of other High Court only in respect of procedural error crept in under misapprehension and does not extent it to the extent of reopening and rehearing on merits that too suo motto. The three judges bench of our Supreme Court in the case reported in AIR 1960 SC 137 held that error which has to be established by a long drawn process of reasoning on points can hardly be said to an error apparent on the face of the record. The Supreme Court has also in the judgment reported in AIR 1979 SC 1047 clearly laid down that the power of review cannot be exercised on the ground that the decision was erroneous on merits. The Supreme Court is of the view that any decision on merits even if its erroneous is to be decided by the court of appeal not by the same bench which heard the matter. 27. Further though it cannot be disputed that the Tribunal has under the statue power of rectification and has also inherent power of review the same cannot be suo motto invoked. It can be done but only at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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