TMI Blog2010 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... of decision in the manner recognised under Rule 26 becomes functus officio - no suo-motto power to recall its own order and to reopen the matter for rehearing on merits - 26465 and 26466 of 2009 - - - Dated:- 22-11-2010 - K.B.K. Vasuki, J. REPRESENTED BY : Shri T. Ramesh, for the Petitioner. S/Shri K. Mohana Murali and T.R. Senthil Kumar, for the Respondent. [Order (Common)]. Both the writ petitions are arising out of appeal proceedings in Appeal No. C/07/2009 pending before the Appellate Tribunal. While 26465 of 2009 is filed to quash the order of the first respondent/President of the Board dated 17-7-2009 thereby laying down certain directions in respect of the pending matters, WP. No. 26465 of 2009 is filed for directing the appellate Tribunal to pass detailed order in line with the gist of decision pronounced recorded and signed in open court on4-6-2009in the appeal proceedings of the petitioner. 2. The brief facts which are relevant for consideration herein are as follows: The petitioner has filed an Appeal in C7/2009 before the 2nd respondent/Appellate Tribunal against the order dated10-11-2008passed by the Commissioner of Customs. Chennai. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der No. 4/09 dated 17-7-2009 is directed to be made applicable to all pending matters as on 17-7-2009. It is not in dispute that after rehearing the petitioner s appeal and the application are till date not disposed of. Pending the same, the petitioner has come forward with the present two writ petitions for the reliefs as stated supra. 3. The main grievance raised on the side of the petitioner in both the writ petitions is that the Tribunal having pronounced gist of the decision, after hearing both sides in the open court and having recorded the same and signed the same in the open court, is bound to pass final detailed order in the same line and the Tribunal has after pronouncement of the gist of decision become functus officio and is not vested with any power either to modify or alter the order or reopen the matter for rehearing and the rehearing would amount to reviewing its own order without any provision in CESTAT procedure. It is further contended by the learned counsel for the petitioner that Cl. 4 and 5 of the Order No. 4 of 2009 dated 17-7-2009 to the effect that if no final order is passed even after expiry of three months without the order being delivered and pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration herein are (1) whether the president is empowered to issue any order regulating the manner of functions of the benches in discharge of its functions if so whether such guidelines given effect to prospectively and retrospectively (2) whether the circular so issued by the president which is impugned herein is applied to the appeal proceedings in reopening the same for rehearing after the gist of the decision is pronounced, signed, written and dated in the open court. 8. The perusal of the Order No. 4/2009, dated 17-7-2009 with objectionable clauses 4 and 5 impugned herein enclosed at pages 8 to 11 of the typed set of papers reveals that the same are issued only in the light of the decisions and directions issued by the Supreme Court and Bombay High Court in the judgments cited on the side of the respondents with a view to avoid delay between the hearing of arguments and delivery of orders such delay is in the opinion of the Apex Court and other High Court likely to tarnish the image of judiciary and to shake the confidence of the litigant public in the same. The judgment of Apex Court and the Division Bench of other High Court have also issued various directions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the batch of writ petition decided on 17-7-09 in Sundek India Ltd. v. Commissioner of Commercial Taxes and Other reported in 2009 (4) CTC 858 is pleased to observe that in tax matters the clarifications issued can be applied only prospectively failing which it will cause hardship to the assesses. That being the legal and factual position no further finding is necessary in this regard in so far as the circular impugned herein. 12. Regarding the validity and enforceability of the Clauses 4 and 5 in the Order No. 4/09, dated17-7-2009, the same are for better appreciation extracted below : 4 On expiry of period of three months without the order being delivered and pronounced from the day of conclusion of the hearing of the arguments in a matter, such matter shall be deemed to have been not heard and will have to be listed for fresh hearing only after obtaining prior order in writing in that regard from the Hon ble President . 5. The above stated procedure shall apply mutatis mutandis to the cases where gist of the decision is pronounced on conclusion of the hearing of the arguments by reserving the detailed order to be passed. The reading of the same would reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Vice-President seeking rehearing of the matter on some legal ground and on merits and the clarification was sought for from the President and the clarification issued by the President is as follows : the tribunal renders itself functus officio in relation to such matters and cannot suo motto recall the final order and interfere therein therefore the question of re-hearing of the matter in question does not arise . 15. In pursuance of the same the Member (Technical) recorded the final order and then sought for approval of the competent authority i.e., President to deliver the order and the approval was duly accorded for delivering the order and the Member (Technical) thereafter forwarded the file to Vice-President who is the other Member of the bench to do the needful for delivering the order and the detailed order was subsequently delivered on 10-2-2010. The perusal of the copy of the final order enclosed at pages 11 12 of the additional typed set of the papers reveals that the detailed order contains the date of hearing, date on which the gist of the decision is pronounced and the date of the final order is given at the top of the detailed order as 22-5-2009 and the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rule 26 of CESTAT is as follows : Customs Act 129(b) : The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. Rule 26 Order to be signed and dated : Every order of the Tribunal shall be in writing and shall be signed and dated by the Members constituting the Bench concerned. Last date of hearing of the matter shall be typed on the first page of the order. If the order is dictated on the Bench, the date of dictation will be the date of the final order. If the order is reserved, the date of final order will be the date on which the order is pronounced. In case, where gist of the decision is pronounced without the detailed order, the last para of the detailed order shall specify the date on which the gist of the decision was pronounced. In such cases, the date of the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd B. Daga v. Surendran (T.K.) 4th ITO in [1972] 85 ITR 48; (2) CIT v. Dr. T.K. Jairaj in [2002] 256 ITR 252; (3) CIT v. Sudhir Choudhrie in [2005] 278 ITR 490W; (4) J.K. Synthetics Ltd. v. CCE in 1996 (86) E.L.T. 472 (S.C.); (5) Sunitadevi Singhania Hospital Trust v. UOI in 2009 (233) E.L.T. 295 (S.C.); (6) Ram Kirpal v. UOI in 1998 (103) E.L.T. 8 (Guj); (7) Aroon Phospho Products (P) Ltd. v. CCE, Bombay in 1996 (86) E.L.T. 476 (S.C.); (8) Basti Sugar Mills Co. Ltd. v. CCE in 1990 (47) E.L.T. 404; (9) Triveni Sheet Glass Works Ltd. v. CCE, Allahabad - 1996 (83) E.L.T. 192; (10) CCE v. Panchal Products in 1993 (68) E.L.T. 918; (11) J.P. Jaiswal v. CC, Lucknow in 2008 (226) E.L.T. 13 (S.C.) (sic); (12) Anil Rai v. State of Bihar reported in 2009 (233) E.L.T. 13 (S.C.) = 2009 (13) S.T.R. 465 (S.C.); (13) R.C. Sharma v. Union of India and Others in AIR 1976 Supreme Court 2037; (14) Devang Rasiklal Vora v. UOI - 2003 (158) E.L.T. 30 (Bom.); (15) Dinkar Khindria v. Union of India in 2008 (231) E.L.T. 47 (Del.) = 2008 (12) S.T.R. 419 (Del.); (16) Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers in JT 2010 (4) SC 35 = 2010 (254) E.L.T. 6 (S.C.); (16) Shivsagar Veg. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the error committed by itself, and there shall not be any inordinate and unexpected delay for delivering the order after concluding the hearings cannot at all be disputed but the views expressed by Special Bench CEGAT, New Delhi reported in 1990 (47) E.L.T. 404 (cited supra); 1996 (83) E.L.T. 192 (cited supra); and 1993 (68) E.L.T. 918 (cited supra) cited on the side of the respondents to the effect that the formal expression of the decision not followed by detailed order giving reasons is not an order are not applicable herein for the simple reason that those observations are made much before the insertion of Rule 26 which provides for pronouncing gist of decision and detailed order on different dates and for the reason that the issue involved are different. While in other cases, the tribunal was approached where the gist of decision was not followed by detailed order where in the issue involved herein is as to whether the matter can be reopened after gist of decision is pronounced. 26. Though, the Hon ble Supreme Court and the Division Bench of other High Court in the judgments cited on the side of the respondents are of the view that the tribunal has inherent powers of review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision is followed by detailed order in consonance with the gist of decision pronounced by the bench. 29. Thus for the discussion held above this court is of the view that the President is empowered to pass directions regulating the manner of discharge of functions by the benches and the Order No. 4/09, dated 17-7-2009 is issued only prospectively and the re-opening of the appeal filed by the petitioner for rehearing is without reference to Order No. 4/09, dated 17-7-2009 and the bench having passed gist of decision in the manner recognised under Rule 26 becomes functus officio and has no suo-motto power to recall its own order and to reopen the matter for rehearing on merits and the bench is bound to record the detailed order in line with the gist of decision pronounced, written and signed in the open court on 4-6-2009 in appeal No. C/07/2009 of the petitioner. 30. In the result, W.P. No. 26465 of 2009 stands dismissed and W.P. No. 26466 of 2009 is allowed as prayed for directing the 2nd respondent to pass detailed order in the petitioner s appeal No. C/07/2009 in consonance with gist of decision pronounced, recorded, signed and dated in open court on4-6-20009, within 15 day ..... X X X X Extracts X X X X X X X X Extracts X X X X
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