TMI Blog2018 (2) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... , sought remedies that are not available to right wrongs that are imagined. The applications are devoid of merit and are dismissed. - C/Misc/85035/18, C/Misc/85040/18, C/Misc/85041/18, C/Misc/85042/18, C/85234/17, C/85235/17, C/85236/17 - M/85020-85023/2018 - Dated:- 17-1-2018 - Mr Anil Choudhary, Member (Judicial) And Mr CJ Mathew, Member (Technical) ForAppellant: Shri Mukul Rohatgi, Sr. Advocate, Shri Atul Nanda, Sr. Advocate, Shri Vikram S. Nankani, Sr. Advocate, with Shri SaurabhKripal, Advocate, Shri Prakash Shah, Advocate, Ms. ManaliSinghal, Advocate, Shri SujayKantawala, Advocate For respondent: None Per: C J Mathew A matter without precedent, at least as far as this Tribunal is concerned, has been placed before this Bench. Miscellaneous applications of one Shri KVS Singh, Additional Director General (Adjudication), DRI, Mumbai Zonal Unit have been filed in appeal no. C/85234- 85236/17 of Shri Vipin Mahajan, Shri Rahul Bhandare and M/s Knowledge Infrastructure Systems Pvt Ltd which was listed for hearing today following the original listing on 8thJanuary 2018. Novelty attaches not only to the prayer, which is that of seeking transfer of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he records, it is seen that Shri Ramanan has been authorized to appear for respondent in appeal filed against order-in-original no. 05/KVSS(05)ADG(ADJ.)/DRI,MUMBAI/ 2016-17 dated 23rd December 2016. Such authorization cannot be said extend to others who may choose, for reasons best known to themselves, to inveigle themselves into the proceedings in a manner totally unprecedented and contrary to all convention, practice and traditions that governs judicial proceedings. 5. To ascertain the status of the applicant we perused the records. It would appear that Shri KVS Singh had adjudicated the show cause notice leading to the order impugned before us. We also take note that the title in the last cause list indicates the respondent to be Additional Director General (Adjudication); we cannot, however, be certain of the whys and wherefores of this mysterious transformation. Suffice it to say that a cause title cannot make or unmake the rivals in an appeal and the surest determinant of the personae are the appeal papers filed under rule 6 of Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982. From these, we note that applicant is not the respondent in the appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priety in the choice of expressions to qualify the lack of closure by the earlier bench after conclusion of proceedings on 12th September 2017 which is itself inaccurate. Furthermore, the protest against the listing of the matter on this day by disregard of the longer hiatus sought by Learned Special Counsel for Revenue was, in his words, tantamount to denying the authority of the Tribunal and an arrogation of privilege of countermanding decisions of the Tribunal that vests solely in constitutionally established judiciary. Drawing our attention to the allegation of undue haste and disregard of genuine request, he wondered whether the applicant himself comprehended the meaning and implication of the expressions and submits that nothing could be more horrifying to an officer of the court and a servant of law than that matters of severe gravity, such as alienating a bench from a matter before it, are so frivolously and casually sought. According to him, there could be no greater demonstration of ignorance of the judicial process and of delusion of grandeur stemming from habituated exercise of power without any accountability. 11. Mr Nanda asserted that proceedings for contempt woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the Registrar in this case to have appeared merely for the purpose of elucidating his own judgment and pointing out the errors in the judgment of the Court below. That is not the proper function of the Court of first instance, and in this case the Registrar is nothing else except the Court of first instance. He must submit to the judgment of lower appellate Court if there is no appeal from that judgment. If there is an appeal, he must submit to the judgment of the final Court of appeal. If his judgment is right, it will be restored by the final Court and the errors of the lower appellate Court will be rectified; if his judgment is wrong, that the lower appellate Court's judgment will be confirmed by the final Court of appeal. But, as I said before, this Court neither needs illumination nor guidance from the Judge of the first instance as to what are the errors in the judgment of the lower appellate Court. 13. On the aspect of legality of the prayer in the Miscellaneous Applications, the decision of the Hon ble High Court of Madras in Areva T D India Ltd v. Commissioner of Customs (Exports), Mumbai [2013 (296) ELT 453 (Mad.)], according to Mr Nanda, sets to rest any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficio when it pronounces its decision, and that thereafter there is no authority in existence to which the writ could be issued. The question thus raised is of considerable importance, on which there is little by way of direct authority; and it has to be answered primarily on a consideration of the nature of a writ of certiorari to quash. Before proceeding to isolate some manifestation of the tribunal during its temporary existence for applying the writ. From this, we may infer that an entity that is rendered functus officio is deprived of the wherewithal to initiate though the implementation of any fruit of the functus officio may be subjected to remedies by appropriate jurisdiction. 17. An adjudication authority acquires breath of life with the show cause notice that proclaims its authority and is snuffed out of existence with the conclusion of proceedings. Its decisions are implemented by the tax administrator and grievance of the tax administrator against it may be sought to be redressed in appeal. Hence, the creature acquires an existence with the mortality of its creator and any mutation of the creature is without any referral to the creator. This conundrum may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the appeal can dispose off all miscellaneous matters arising from such appeal; accordingly all four applications are disposed off together. Application no. C/Misc/85035/18 prays for transfer of the matter to a bench that would apparently meet with the approval of the applicant who has, in no uncertain terms, expressed his unhappiness with this bench for departing from the standards of the ideal engraved in his mind. Three other identical applications no. C/Misc/85040-85042/18 are no less combative and seek expunging of record of ex parte hearing of 8th January 2018 and an adjournment of three weeks for hearing of the appeal. It is obvious from the submissions and prayers in these application that the applicant has not only demonstrated his lack of knowledge of the provisions of Customs Act, 1962 but also his aversion to rules, regulations and conventions. 22. Expunging of records is not a remedy that exists in statute. A desire does not acquire the patina of demand without citation of a sanctifying provision. Ex parte orders are valid in law. Rules 19, 20 and 21 of Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1992 mandates hearing of the appellant; the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongs that are imagined. In short, the applications are devoid of merit and are dismissed. The main appeal which was heard in part, is listed for continuation of hearing on 15th February 2018. 25. In view of our aforementioned observations and the facts on record, we find that various assertions have been made without any deference for truth of facts. This has impacted upon the dignity of the Tribunal as an appellate authority and to which the order of the applicant, as an adjudicating authority, must be subject. Such applications are not to be filed before the Tribunal without ascertaining facts or in such frivolous and casual manner. We have already noted that the applicant is without any locus standi as far as this appeal is concerned. He, at the same time, occupies an office of public trust which is to be handled in public interest. Such does not appear to have happened here. We should, in the normal process, have contemplated appropriate action against him. Before doing so, we direct him to appear before this Bench on the next date of hearing to explain his stand and to make any statement in mitigation that he wishes to. 26. A copy of this may be served on Shri K ..... X X X X Extracts X X X X X X X X Extracts X X X X
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