QUASI JUDICIAL AUTHORITY HAS NO JURISDICTION TO REVIEW ITS EARLIER ORDER

[Mr. M. GOVINDARAJAN]

Tribunals have been constituted to lessen the work load accumulated before the High Courts and Supreme Court. Even though they are having certain judicial powers they could not be equated with the Courts. The Courts are having inherent powers to review its own orders. The tribunals and other authorities such as adjudicating authorities in tax laws, Commissioner (Appeals) are treated as quasi judicial authorities. If any person aggrieved against the order of a quasi judicial authority he is to file against the order to the appellate authority. The aggrieved person, instead of filing appeal before the appellate authority, cannot apply to such quasi judicial authority to review its earlier order. 

Section 74(1) of Finance Act, 1994 provides  that the Central Excise officer who passed the original order under the service tax provisions is empowered to rectify any mistake in that order but the mistake must be apparent from the records. As held in 'T.S. Balaram V. Volkart Bros' - [2008 -TMI - 6255 - SUPREME Court]  a mistake apparent from the record must be obvious and not involve a debatable point of law. Thus a 'mistake apparent on record' must not be something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions.

In 'Commissioner of Central Excise, Bangalore III V. McDowell & Co., Ltd.,' 2005 -TMI - 47369 - (HIGH COURT OF KARNATAKA AT BANGALORE)z the Karnataka High Court held that the quasi judicial authority has no jurisdiction to review its earlier order.  It further held that the tribunal after having exercised jurisdiction for the purposes of passing an order of waiver of pre-deposit under proviso to Section 35F of the Central Excise Act, cannot modify that order subsequently like an appellate authority, nor can keep tinkering with such an order as and when the application for the modification of the order are filed. The High Court further observed that - "It is significant to notice that the Supreme Court has ruled that the tribunal does not even have the power to review its orders while exercising its appellate power under Section 35C of the Act".

In 'Baron International Ltd., V. Union of India' - 2003 -TMI - 46840 - (HIGH COURT OF JUDICATURE AT BOMBAY) the Division Bench of Bombay High Court has ruled as - "Our experience shows that in almost all the applications moved to seek modifications of the tribunal's order contain only grounds of review. They are freely entertained by the CEGAT and the same are something accepted or rejected on merits with detailed order. Such excise, apart from labor, must be consuming major part of its working hours. This wastage of labor and working hours can easily be saved by the CEGAT to find out whether any change in circumstance after the previous order, is shown with sufficient material in that behalf; of any other reason prima facie, exists warranting modification of the previous order on the ground which was not available when the previous order was made. At the threshold, if such preliminary enquiry is made by the Tribunal, we are sure in most of the cases application may not be required to be heard on merits. Had such enquiry been made by the CEGAT in this behalf in this case, we are sure, tribunal would have saved its labor and time and would not have been required to devote nine pages for writing the impugned order. We direct that henceforth the Tribunal shall first make prima facie, enquiry whether application needs consideration on merits as indicated by us hereinabove before considering any application for modification of its previous order on merits. If the tribunal finds that prima facie case for modification is made, then, only a tribunal shall deal with such application on merits. The tribunal shall be justified in rejecting frivolous applications at the threshold."

In 'Planet Electronics Pvt. Ltd., V. Commissioner of Central Excise, Mumbai - II' - [2009 -TMI - 33962 - CESTAT, MUMBAI] the Commissioner (Appeals) dismissed the application for stay.  The appellant had moved an application for modification of the stay order before Commissioner (Appeals). The same was also dismissed. Therefore the appellants filed the appeal before the tribunal. The appellant contended that the Commissioner (Appeals) had passed the order dismissing their applications for stay in a mechanical manner and without considering the prima facie case of the applications. The application for modification of the order was also dismissed without proper application of mind and without considering the prima facie case of the applicants.  The appellant further contended that-

>>> the authority below had passed an incorrect order, and therefore, it had ample powers to modify the same;

>>> in case, the tribunal wants to take a view different from the one taken in 'Delux Re-rolling Metal Power Case, it would be refer the matter to a larger bench of the tribunal;

>>> since the order was passed by the authority below without considering the prima facie case, the same needs to be stayed without insisting for any pre-deposit.

The tribunal after considering the contentions held as follows:

>>> It is elementary rule of law that the question of grant of stay of an order can arise only when it is an executable order.   The order, which is the subject matter of challenge in the appeal, ex facie, discloses that it is an order rejecting the application for modification of the earlier order. By no stretch of imagination, it can be said to be an executable order. Therefore, on this ground, the question of grant of stay of the impugned order would not arise;

>>> The records disclose that what is challenged before the tribunal is an order passed by lower authority refusing to modify its earlier order. The concept of modification of the order implies exercise of the power in the nature of power of review of its earlier order;

>>> The law on point is as to whether the lower quasi judicial authority has any power to review its order, it is well settled and in fact, they do not have any such power. Prima facie, therefore, there is no substance in the appeal which has been filed against the order of the Commissioner (Appeals) refusing to modify its earlier order;

>>> The decision of the Apex Court, in 'Mehsana District Co-operative Milk Private Ltd., V. Union of India' - 2003 -TMI - 46557 - (SUPREME COURT OF INDIA), relied on, is in the nature of remand of the matter for reconsideration of the case by the lower authority;

>>> The concept of remand is totally different from the concept of review of modification;

>>> The remand is always by the higher authority to the lower authority and modification or review is by the same authority;

>>> Merely because the Apex Court remanded the matter for reconsideration of the same by the lower Appellate Authority, it does not lead to lay down that the law by the Apex Court that every Appellate Authority has the power to review;

>>> The reference to larger bench can arise only on a point of law conflicting views are taken by different benches of the tribunal. That is not the case in hand. Hence there is no substance in the present application and it is dismissed.