2010 (11) TMI 166 - HC - Customs

CESTAT procedure reopening of an order - Held that Viewing from any angle reopening of the matter for rehearing suo-motto at the instance of one of the members cannot have legal approval. As rightly argued by the/learned counsel for the petitioner once the order is, in the manner as recognised under Rule 26 is pronounced, written and signed, the same is bound to be followed by detailed order in consonance with the same and the gist of decision delivered in open court is for all practical purposes to be treated as final decision and what is to be followed is the detailed order containing reasons in support of the final decision and the Tribunal become functus officio and has no power to reopen the matter on merits. the President is empowered to pass directions regulating the manner of discharge of functions by the benches and the Order No. 4/09, dated 17-7-2009 is issued only prospectively and the re-opening of the appeal filed by the petitioner for rehearing is without reference to Order No. 4/09, dated 17-7-2009 and the bench having passed gist of decision in the manner recognised under Rule 26 becomes functus officio - no suo-motto power to recall its own order and to reopen the matter for rehearing on merits

Issues Involved:
1. Whether the President of the Tribunal is empowered to issue orders regulating the manner of functions of the benches.
2. Whether the circular issued by the President can be applied prospectively and retrospectively.
3. Whether the Tribunal can reopen an appeal for rehearing after pronouncing the gist of the decision.
4. Validity and enforceability of Clauses 4 and 5 in the Order No. 4/09, dated 17-7-2009.

Issue-wise Detailed Analysis:

1. Empowerment of the President to Issue Orders:
The court examined whether the President of the Tribunal has the authority to issue orders regulating the functions of the benches. The court referenced various provisions of the Customs Act and CESTAT Rules, including Sections 129(B)(6) and Rules 4, 11, 16(5) & (6), 28(A)(7), 31(A), 40, 41, 44(1), and 47. These provisions collectively empower the President to issue orders regarding the functioning of the Tribunal, including the conduct of appeals, constitution of benches, and administrative orders. The court concluded that the President is indeed empowered to issue such orders.

2. Prospective and Retrospective Application of the Circular:
The court analyzed whether the circular issued by the President on 17-7-2009, which contains Clauses 4 and 5, can be applied retrospectively. The court noted that the circular does not explicitly state its retrospective application. However, a subsequent order dated 21-7-2009 directed that the circular be applicable to all pending matters as of 17-7-2009. The court referred to a previous judgment (Sundek India Ltd. v. Commissioner of Commercial Taxes) which held that clarifications in tax matters should be applied prospectively. Therefore, the court concluded that the circular should be applied prospectively.

3. Reopening of Appeal for Rehearing:
The court addressed whether the Tribunal can reopen an appeal for rehearing after pronouncing the gist of the decision. The petitioner argued that once the gist of the decision is pronounced, recorded, and signed, the Tribunal becomes functus officio and cannot reopen the matter. The respondents contended that the Tribunal has inherent power to correct errors and recall its own orders. The court examined various judgments and concluded that while the Tribunal has the power of rectification and inherent power of review, these powers cannot be exercised suo moto and must be invoked by either party within a specified timeframe. The court held that reopening the matter for rehearing suo moto is not permissible.

4. Validity and Enforceability of Clauses 4 and 5 in Order No. 4/09:
The court scrutinized Clauses 4 and 5 of Order No. 4/09, which state that if a detailed order is not delivered within three months of the hearing, the matter shall be deemed "not heard" and listed for fresh hearing. The court noted that these clauses were issued to avoid delays in delivering orders, as directed by the Supreme Court and other High Courts. However, the court found that these clauses do not apply to the petitioner's appeal, as the reopening for rehearing occurred before the issuance of the order. The court emphasized that the Tribunal must follow the gist of the decision pronounced in open court and cannot reopen the matter on merits.

Conclusion:
The court dismissed W.P. No. 26465 of 2009 and allowed W.P. No. 26466 of 2009, directing the Tribunal to pass a detailed order in line with the gist of the decision pronounced on 4-6-2009 within 15 days. The court reiterated that once the gist of the decision is pronounced, the Tribunal becomes functus officio and cannot reopen the matter for rehearing on merits.

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