TMI Blog2014 (5) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... we expect a better understanding and coordination between the members manning this Tribunal. At one time this Tribunal was known for its professionalism and expertise. The decisions were rendered efficiently and quickly. It was one of the best Tribunals and its example was cited even during the course of imparting training to the Judicial Officers at Academies. Its working resulted in saving time and costs. Further, both the Revenue and Assessee knew where they stand in terms of the Applicability of Tax laws. That serves larger Public Interest and guarantees Economic Justice to all. We would now at least expect the Tribunal to work in a manner so as to uphold the object and purpose of the Act. It may not to be out of context if we remind the members of the Appellate Tribunal of the practice, tradition Customs followed over decades by the Judges and which have been referred by the Hon'ble Supreme Court in several judgments. We are not at all critical of the manner in which the Tribunal is functioning and working. We are aware of the fact that at times large number of cases take a toll on the Judicial Officers or the Members. Pressure of work and docket explosion requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was delivered, the Member (Judicial) took a particular view on the merits of the case. The Member (Technical) in his separate opinion not only differed on the merits of the case but also held that the demand is not hit or barred by limitation. There was an opinion expressed even on this point. The Member (Technical) thus expressed a view that the extended period of limitation has rightly been invoked. Mr. Patil submits that it is pertinent to note that the Member (Judicial) has not expressed any opinion on this aspect of the matter. Yet, while formulating the question or opinion for answer by a third member, the Tribunal has framed that in the following manner:- Whether the Member (Judicial) is correct in holding that the appellants are engaged in the activity of promoting the brand of Intel/Microsoft consequently, the activity of 'promotion or marketing of logo or brand' does not cover under the category of Business Auxiliary Service by relying on the judgment of Jetlite (India) Ltd.(Supra). Or Whether the Member (Technical) is correct in holding that the appellants are engaged in the activity of promoting the branded goods of Intel/Microsoft, therefore, the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , either way. That would not be fair to both sides. Even otherwise, he submits that the law is well settled. Whenever there is a provision incorporated, enabling the Tribunal which is exercising an appellate power to express a difference of opinion on any point, then, that term/word must receive such meaning as would advance the purpose of the Statute. Restricting or narrowing the meaning of the provision would defeat the ends of justice. He further submits that this was not a case for rectification of any mistake. It will be open for the appellant to point out to the Third Member any factual matter and the distinction with the case of M/s. Datamani Technologies (India) Ltd. In such circumstances, the Tribunal rightly dismissed the application seeking to rectify the mistake and, therefore, the appeal does not raise any substantial questions of law. It should be dismissed. 6. With the assistance of Mr. Patil and Mr. Jetly, we have perused the original record which we called from the Tribunal. Perusal of the original record indicates that the original order was pronounced in the appeal being Appeal no.ST/10/2010-Mum. The Member (Judicial) has rendered his findings and conclusions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the order deserves to be rectified so as to refer to the facts of the present appellant. Such an application was made on 20.9.2012. The Tribunal in dealing with the application for rectification of mistake filed by the present appellant has held that the issue before this Court in Suzlon Infrastructure Ltd. Vs. Union of India (UOI) and Ors., 2009 (243) ELT 497 (Bom) was with regard to the maintainability of the application for rectification of mistake during the pendency of a reference to Third Member. That issue does not arise for consideration before the Tribunal. In paragraph 4.1 of the order under challenge, the Tribunal observed that the Member (Judicial) gave his findings on merits and has not gone into other issues raised by the appellant. The Member (Technical) has considered other aspects also. Now, the third Member is required to express an opinion on factual and other issue or question. However, this cannot be said to be a mistake apparent in the Tribunal's original order. In these circumstances, the Tribunal proceeded to dismiss the application. It is essentially this order which is challenged before us. 8. We clarify that we express no opinion on the rival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is decided originally and by the Third Member. The appellant can point out the errors committed in the course adopted by the Third Member while rendering his opinion or answering the question formulated above. At this stage, we are not inclined to go into the larger issue. We are of the opinion that the present Appeal only challenges the order passed on the Miscellaneous Application. The dismissal of the Application does not raise any substantial question of law. If the Third Member has any difficulty in answering the reference, he can set out the same in his opinion. 9. Mr. Patil, would invite our attention to the judgment in the case Suzlon Infrastructure Ltd. (supra) and rendered by this Court. True it is that the Division Bench in Suzlon Infrastructure Ltd. (supra) has held that the application of the nature made by the appellant is maintainable, but it is not necessary to express any further opinion by us at this stage as we are proceeding on the footing that rectification of mistake application made by the appellant was maintainable even during the pendency of the reference to the Third member. Once we have proceeded on that basis and foundation and gone into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal, we have called upon not only Mr. Patil and Mr. Jetly, but learned Senior Advocate Mr. Sridharan to assist us so that a disturbing trend which we have noted can be arrested and the Members of Tribunal do not routinely render differing opinions on factual matters necessitating reference to a Third member. It is with some pain and anguish that we have noted the grievance of the Counsel that occasions of the aforesaid nature are frequently occurring and that hampers the administration of justice, equally that affects the working and functioning of the Tribunal. The Tribunal comprising of Member (Judicial) and Member (Technical) is conferred with a special jurisdiction. It is expected to deal with the matters arising under the Special Act fairly and expeditiously and to enable the Tribunal to do so that its composition is as noted by us and of the above nature. The experience drawn from the Technical side is combined with the Judicial wisdom. By combining it the Tribunal is expected to decide the issues arising in special cases. The Tribunal, thus, is manned by persons drawn from both, the technical and judicial side. 12. In the case of State of Gujarat and anr. v. Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eable. A Tribunal may not necessarily be a court, in spite of the fact that it may be presided over by a judicial officer, as other qualified persons may also possibly be appointed to perform such duty. One of the tests to determine whether a tribunal is a court or not, is to check whether the High Court has revisional jurisdiction so far as the judgments and orders passed by the Tribunal are concerned. Supervisory or revisional jurisdiction is considered to be a power vesting in any superior court or Tribunal, enabling it to satisfy itself as regards the correctness of the orders of the inferior Tribunal. This is the basic difference between appellate and supervisory jurisdiction. Appellate jurisdiction confers a right upon the aggrieved person to complain in the prescribed manner, to a higher forum whereas, supervisory/revisional power has a different object and purpose altogether as it confers the right and responsibility upon the higher forum to keep the subordinate Tribunals within the limits of the law. It is for this reason that revisional power can be exercised by the competent authority/court suo motu, in order to see that subordinate Tribunals do not transgress the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been entrusted with the judicial powers of the State, it cannot be held to be a court. 13. In the context of the complaint and grievance made about frequent differing opinions on factual matters, that we called upon the Counsel to address us as to what is the ambit and scope of Section 129C of the Customs Act, 1962, which reads as under:- SECTION 129C. Procedure of Appellate Tribunal. - (1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof. (2) Subject to the provisions contained in sub-section (4), a Bench shall consist of one judicial member and one technical member. (3) Omitted (4) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where - (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (b) in any disputed case, other than a case where the determination of any question having a relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one technical member. Sub-section (4) enables the President or any other member of the Appellate Tribunal authorised in that behalf by the President, to dispose of any case sitting singly. Sub-section (5) has been pressed into service. With the assistance of the learned Counsel appearing for the parties, we have noted the language of this provision. We have also drawn the attention of the Counsel to certain provisions in the Code of Civil Procedure 1908, as amended from time to time. Sections 98, 99 and 99-A of the Civil Procedure Code reads as under:- 98. Decision where appeal heard by two or more Judges. (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. (2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed: Provided that where the Bench hearing the appeal is [composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CPC can be taken aid or assistance of inasmuch as by that Sub-section the Parliament clarifies that nothing contained in Section 98 shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court. He submits that Clause 36 of the Letters Patent of Bombay High Court uses the same terminology and language as is to be found in sub-section (5) of Section 129C of the Customs Act, 1962. 15. We agree with Mr. Sridharan on this point and his reliance placed on the judgment of Hon'ble Supreme Court and the other High Courts is apposite. In this regard, Mr. Sridharan has invited our attention to the judgment of Hon'ble Supreme Court rendered as far as back in the year 1997 - 1998 in the case of S.G.P. Committee vs. M.P. Dass Chela (dead) by L.Rs. reported in AIR 1998 SC 1978 . The Hon'ble Supreme Court has held as under:- 7. As regards the applicability of Section 98 (2) C.P.C., it is rightly pointed out by learned counsel for the respondent that the contention was not raised at any stage before the arguments in this appeal. It has not been raised even in the Special Leave Petition. There is also no merit whatever in the said content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal to record differing opinions on any point including facts. However, here we may sound a note of caution. That the Tribunal as a last Appellate Court should equally be aware of the powers conferred on the Appellate Court. An Appeal is a creature of a Statute and is not an inherent right of the Litigant. In appeal, the original order is brought before the Court of appeal for being challenged on law and facts. In the scheme of the Customs Act, the Tribunal has been empowered to decide appeals. Section 129A of the Customs Act, 1962 reads as under:- Section 129A. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority (b) an order passed by the Commissioner (Appeals) under section 128A; (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that an order passed by the Appellate Commissioner of Customs under section 128, as it stood immediately before the appointed day, or by the Commissioner (Appeals) under section 128A, is not legal or proper, direct the proper officer to appeal on its behalf to the Appellate Tribunal against such order. Provided that where the Committee of Commissioners of Customs differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Customs who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct the proper officer to appeal to the Appellate Tribunal against such order. Explanation.- For the purposes of this Sub-section, jurisdictional Chief Commissioner means the Chief Commissioner of Customs having jurisdiction over the adjudicating authority in the matter. (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the Commissioner of Customs under this sub-section. A bare perusal of sub-section (1) and particularly clauses (a), (b) and (c) would denote that an appeal lies to the Appellate Tribunal against the order passed by the Commissioner under Section 128A or an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day. We wish to emphasise that the Tribunal is not always deciding appeals against original orders. It can be approached against some appellate orders as well. The sub-sections of Section 129A would show that the appeals lie against various orders and in varied situations. The Tribunal, therefore, should be mindful of the salutary principle which the Hon'ble Supreme Court has enunciated while dealing with the Appellate powers in its decision in the case Mohd. Mehtab Khan Ors. Vs. Khushunma Ibrahim Ors. reported in AIR 2013 SC 1099 . The Hon'ble Supreme Court reiterated this principle in the following words:- 15. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph:, (AIR 1960 SC 1156) (SCR 721): (at P.1159 of AIR). ...These principles are well established, but as has been observed by Viscount Simon in Charles Osenton amp; Co. v. Jhanaton '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'. The appellate judgment does not seem to defer to this principle. 17. Thus, even when seized of an appeal against the order passed by the appellate authority or an original order, this principle has to be borne in mind. The Appellate power has to be exercised so as to correct such errors as are referred by the Hon'ble Supreme Court. Equally, due regard and respect must be given to the opinion of the original Authority/Appellate Authority. If the view taken is possible, plausible and probable, then, merely because another opinion can also be rendered on the same facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for judicial fraternity that matter lingers on and issues are left open giving unending scope for differing opinions and views. That enables the litigants to take chances and resort to even forum shopping. This needs to be avoided at all costs. No member, judicial or technical, is above the law. The Supreme Court's decisions and particularly cautioning the Appellate Tribunal/ Court/ Authority should, therefore, guide the Tribunals in exercise of their appellate power. We expect that the Tribunal at least now takes cognizance of our anxiety and the note of caution. The Tribunal should bear in mind that in the present case when the original order was delivered on 20.6.2012, the order on rectification application was passed on 11.10.2012, till the end of April,2014 nothing has been achieved. The issues and the matters are kept pending. The delay in deciding tax cases upsets not only the Assessee but the Revenue. In a given case it may have adverse impact on the collection of duty. Equally the assessment or valuation proceedings should not drag on and remain pending for years. Thus, avoiding the delay in disposal of cases is an object which needs to be achieved, particularly, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time this Tribunal was known for its professionalism and expertise. The decisions were rendered efficiently and quickly. It was one of the best Tribunals and its example was cited even during the course of imparting training to the Judicial Officers at Academies. Its working resulted in saving time and costs. Further, both the Revenue and Assessee knew where they stand in terms of the Applicability of Tax laws. That serves larger Public Interest and guarantees Economic Justice to all. 18. We would now at least expect the Tribunal to work in a manner so as to uphold the object and purpose of the Act. It may not to be out of context if we remind the members of the Appellate Tribunal of the practice, tradition Customs followed over decades by the Judges and which have been referred by the Hon'ble Supreme Court in several judgments. In one of the judgments delivered in the case Tirupati Balaji Developers Pvt. Ltd. Ors. Vs. State of Bihar Ors. reported in AIR 2004 Supreme Court 2351 the Supreme Court has held thus:- 9. In a unified hierarchical judicial system which India has accepted under its Constitution, vertically the Supreme Court is placed over the High Courts. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of Full Bench (of five judges) in Chappan v. Moidin Kutti, (1899) 22 ILR Mad. 68 (at p.80) stated inter alia that appeal is the removal of a cause or a suit from an inferior to a superior Judge or Court for reexamination or review . According to Wharton's Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior Court. In consonance with this particular meaning of appeal, 'appellate jurisdiction' means the power of a superior Court to review the decision of an inferior Court . Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. This has been well put by Story:- The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laying emphasis on the appellate hierarchy which, examined in the correct perspective, is a factor strongly contributing towards the independence of the judiciary and securing finality in adjudication within the system and its insulation from any outside interference or correction. The delicate balance has been carefully crafted and sought to be achieved by independence and interconnection -- both existing simultaneously -- of the Supreme Court and the High Courts. There are 'relationships of tension as well as those of cooperation', to borrow the expression employed by Frank M. Coffin in his work 'On Appeal - Courts, Lawyering, and Judging'. He says, on the sensitive and sophisticated application of the various doctrines governing these relationships depends in large part the effective functioning of cur unique form of federalism. 18. How the Supreme Court and the High Court have to deal with each other specially when the Supreme Court is exercising its appellate jurisdiction over a decision by, or proceedings -- concluded or pending in the High Court? The Constitution has clearly divided the jurisdiction between the two institutions and while doing so these i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und by the decision in [the earlier case], although I am compelled to say, again with the greatest respect, that I believe it to have been wrongly decided'. The Court of Appeal was very unhappy. Lord Justice Davies replied, 'with the greatest respect to Lawson J', that he thought that 'those observations were out of place. It is unusual, and, I am bound to say, undesirable, in my opinion, for a judge sitting at first instance.....to express the opinion, although accepting that he is bound by it, that a decision, and a fairly recent decision, of this court was wrong.' (Judges, pp. 127-128). 20. A great judge and jurist Benjamin N. Cardozo has a little bitter truth to describe. Cautioning the judges against the official-in-judge being permitted to swallow up the man-inhim, Benjamin Cardozo says that there have been judges in the past who suffered that disaster. However, what Cardozo has in mind is something more than the egotism that displays itself in harsh and overbearing manners, in explosive vigour of voice etc. Exuberances such as these are at times the result of infirmities of temper not unknown altogether to the bench though happily uncommon; more often ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another's views, listen to one another, and, where possible, aim to identify areas of agreement. ... Collegiality does mean, however, that, even when I disagree with another judge, I recognize that we are part of a common endeavor, and that each of us is, almost always, acting In good faith according to his or her own view of what the law requires. ...Because I see myself as engaged in a common endeavor with my judicial colleagues, it follows that I have the interests of the judiciary as a whole at heart. ...When there is little or no judicial collegiality, there is less incentive for judges to exercise self restraint. ... collegiality is important not only for working together effectively, but also at a deeper structural level. An attitude of judicial collegiality helps reinforce judges' incentives to behave in a principled and responsible fashion. I think that any discussion of judicial independence, either at the level of institutions or individuals, should take this practice of collegiality into account. (See -- Judicial Norms: A Judge's Perspectives - Washington University School of Law). 26. We would end our this discussion by quoting what Oliver Wendell Holme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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