‘CESTAT’ CANNOT IMPLEMENT ITS OWN ODER

[Mr. M. GOVINDARAJAN]

In civil cases the courts delivered judgment and decree.   The decree is to be executed by the execution courts.  In respect of quasi judicial bodies the order of such body will be made as a decree in the civil court and then only the decree will be executed by the execution court.   Later the Act itself gives powers to the quasi judicial body to implement its own order as if it is a decree.  Unless this power is given in legislation the quasi judicial body cannot implement its own order.   CESTAT is having no power to implement its own order since there is no provision giving power to CESTAT to implement its own order.

In ‘3F Industries Limited V. Commissioner of Customs, Central Excise and Service Tax, Guntur’ – 2014 (12) TMI 900 - CESTAT BANGALORE the appellant filed a miscellaneous application before the Tribunal seeking implementation of the order of the Tribunal.   The Tribunal in that order held that the appellant is eligible for the benefit of Notification No.21/2002  and the appeal was allowed with consequential relief.  The appellant submitted the said order of the Tribunal to the Assistant Commissioner of Customs, Krishnapuram Port and to the Commissioner with a request to release the cargo.  The Assistant Commissioner sent a letter to the Food Analyst, Regional Food Laboratory, Visakhapatnam.  The Food Analyst gave the report that the consignment cannot be allowed to be imported into India under FSS Act, 2006.

The appellant contended before the Tribunal that the action of the department amounts to contempt of the Tribunal’s order and the Customs Department could not addressed the Food Analyst and Food Analyst could not have refused to allow the consignment.  The appellant requested the Tribunal to give a direction to the Commissioner and Assistant Commissioner to implement the order of the Tribunal under Rule 41 of CESTAT (Procedure) Rules.

The Tribunal, after hearing both sides, found that if a statutory authority does not implement the order of the Tribunal, the remedy does not lie in filing miscellaneous application before the Tribunal for the implementation of its order.   The remedy lies in approaching the jurisdictional High Court by filing a writ petition.   The Tribunal cannot order the authority implementing the matters relating to food adulteration and direct that authority to allow the consignment to be imported, when they take a stand that according to the Act, such a consignment cannot be allowed to be imported.  The Tribunal further held that each authority under the relevant act is expected to use their judgment and discretion and implement the law in true spirit and letter.  The Tribunal cannot give directions to an authority which was not a party before it in appeal and  an authority which is implementing another law with which the Tribunal is concerned.  The remedy has to be sought under that law.

In the meanwhile the appellant submitted that the CFL may be impleaded now  and order may be passed.  For this the Tribunal held that once order is passed by the Tribunal, the Tribunal becomes functus officio.  The Tribunal, therefore, held that the submission of the appellant cannot be accepted.