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2020 (2) TMI 204 - HC - CustomsJurisdiction - power to reopen an appeal - power to review an order - Whether CESTAT could reopen an appeal for hearing which was already finally disposed of by its own previous order? - Whether CESTAT has power to review its own order and pass fresh final order in the absence of any petition for review? HELD THAT - It is obvious that very taking up the Appeal by the Tribunal on 19th April, 2007 was an exercise in excess of jurisdiction. Since the Appeal had already been disposed of by the order dated 10th July, 1998, there was really no occasion for taking up such appeal for reconsideration. It is obvious that such taking up of the Appeal was a result of miscommunication. It is obvious that the factum of disposal of the Appeal by order dated 10th July, 1998 was not brought to the notice of the Tribunal, either by the SDR or the staff of the Tribunal. For these reasons alone, the impugned orders dated 19.04.2007 in both these appeals are liable to be set aside and are hereby set aside. It is not necessary to go into the larger issue as to whether the Tribunal has any power to review its own Judgments and orders. However, we must note that Ms. Desai did place reliance upon the decision of the Madras High Court in CP. AQUACULTURE (INDIA) PVT. LTD. VERSUS PRESIDENT, CESTAT 2010 (11) TMI 166 - MADRAS HIGH COURT to submit that the Tribunal is not vested with any such power of review. The substantial questions of law are liable to be answered in favour of the Appellant and against the Respondent.
Issues:
1. Validity of service upon respondents in the appeals. 2. Challenge to the common Judgment and Order dated 19.04.2007 by the Customs, Excise, and Service Tax Appellate Tribunal. 3. Substantial questions of law admitted in both appeals. 4. Tribunal's jurisdiction to reopen an appeal and review its own order. 5. Disposal of the appeals based on the Tribunal's actions. Issue 1: Validity of Service Upon Respondents: The affidavits of service in both appeals were tendered by Ms. Desai, confirming service upon the respondents. Copies of paper publications in the Times of India were also submitted. The High Court was satisfied that the respondents had been validly served in both appeals. Issue 2: Challenge to the Judgment and Order of 19.04.2007: The challenge in these appeals was against the Judgment and Order dated 19.04.2007 made by the Customs, Excise, and Service Tax Appellate Tribunal, rejecting the appeal against the order by the Commissioner of Customs (Appeals), Mumbai. The appeals were admitted based on substantial questions of law regarding the Tribunal's authority to reopen and review its own orders. Issue 3: Substantial Questions of Law: The substantial questions of law admitted in both appeals were whether the Tribunal could reopen an appeal for hearing that was already disposed of and whether the Tribunal had the power to review its own order without a petition for review. The records revealed that the appeals had been allowed earlier, but the Tribunal dismissed the appeal in 2007 without considering its previous order. Issue 4: Tribunal's Jurisdiction to Reopen and Review: The Tribunal's decision to take up the appeal in 2007, which had already been disposed of in 1998, was deemed an exercise in excess of jurisdiction. The Tribunal was not informed of its earlier order, leading to the dismissal of the appeal in 2007. The High Court held that the impugned orders were liable to be set aside due to miscommunication and lack of notice regarding the previous disposal of the appeal. Issue 5: Disposal of Appeals Based on Tribunal's Actions: The High Court set aside the impugned orders dated 19.04.2007, stating that the earlier order from 1998 would prevail. It was clarified that the Respondent could pursue appropriate proceedings against the 1998 order. The appeals were disposed of in favor of the Appellant, emphasizing that the 2007 order was made in excess of jurisdiction. No costs were awarded in the matter. This detailed analysis of the judgment from the Bombay High Court covers the issues involved comprehensively, addressing the validity of service, challenges to the Tribunal's orders, substantial questions of law, the Tribunal's jurisdiction, and the ultimate disposal of the appeals based on the Tribunal's actions.
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