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TMI Blog2018 (2) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018. Novelty attaches not only to the prayer, which is that of seeking transfer of the appeal to another bench, but also to the authority conferred on the applicant to make the prayer. Of the four applications, one appears to be intended for disposal by the Hon'ble President even though Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982 or the parent statutes do not envisage such recourse. In accordance with rule 28C, read with rule 28A, of the Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982, all the four miscellaneous applications are to be disposed off by this bench. 2. Shri Roopam Kapoor, Commissioner (AR), while clarifying that he was not authorized to represent anyone in either the application or appeal, reported that Learned Special Counsel, Shri PRV Ramanan was unavailable. The applicant is not present in person. The applicant is not represented. The applicant does not appear to have authorized anyone, in the manner prescribed by rule 13 of Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982, as representative. 3. At this stage, a brief recollection of the past will not be out of place as that appears to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal (Procedure) Rules, 1982. From these, we note that applicant is not the respondent in the appeals. 6. Law has been settled beyond question on the status of an adjudicating authority. In our knowledge and experience, limited though these may be, an adjudicating authority is rendered functus officio upon conclusion of the proceedings. Such authority can neither be called upon to defend its findings nor is obliged to controvert any challenge to those findings even in statutory appellate proceedings. Concomitantly, its erasure from existence precludes any latitude for inveiglement in appellate proceedings. We propose to examine this is in detail presently. 7. A Miscellaneous Application directed at the competence and propriety of a specific bench to hear an appeal can be decided upon without assistance of the bar. Nevertheless, the contention on behalf of the appellants that the process of serving notice and receiving response may entail delays which may be detrimental to their interests persuades us to hear those with valid credentials to represent. 8. Mr Mukul Rohatgi, Learned Senior Counsel appearing for M/s Knowledge Infrastructure Systems Pvt Ltd, submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habituated exercise of power without any accountability. 11. Mr Nanda asserted that proceedings for contempt would be initiated against the applicant for this scandalous and mischievous abuse of judicial process to thwart the course of justice, to scuttle proceedings before the bench and to compel accommodation of the convenience of Mr PRV Ramanan at the cost of majesty of the law.Expressing concern that the media was being drawn into pressurizing judicial bodies and that the applicant was perverting the appellate remedies conferred by statute, he argued that the scope of contempt law was of sufficient amplitude as held by the Honble Supreme Court in Sahara India Real Estate Corporation v. Securities and Exchange Board of India [2012 (10) SCC 603]. We do not feel the need to accord much consideration to the trajectory of this contention. 12. However, other decisions cited by Mr Atul Nanda must necessarily be acknowledged. Of particular relevance is that of the Honble High Court of Bombay in Mohamed Oomer, Mohamed Noorullah v SM Noorudin [AIR (39) 1952 Bombay 165 (CN 32)(1)], in which Hon'ble Justice Chagla, CJ (as he then was), writing for the bench comprising him and Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd v. Commissioner of Customs (Exports), Mumbai [2013 (296) ELT 453 (Mad.)], according to Mr Nanda, sets to rest any doubt about the restrictions on authority for grant of such prayer. Before concluding, he, claiming prejudice to his client, also insisted, contrary to our disinclination, that the report appearing in Indian Express of Wednesday, 17th of January 2018, Mumbai Edition on page 18 with the headline "CESTAT junks DRI"s adjournment request; starts hearing co's plea afresh" be taken on record. With reluctance, we do so. 14. Having heard the submissions against allowing the application, we can turn to disposal of the Miscellaneous Application. We have already taken note supra that applicant is not a respondent on record and that, as adjudicating author of the order impugned before us, he is functus officio. As held by Hon'ble High Court of Bombay in re Mohamed Oomer, Mohamed Noorullah, the lower authority is bereft of any role in our hearing of the appeal against the order as adjudicated by him. We are at a loss to comprehend his motives for undertaking this unprecedented step. We would, though justifiably entitled to in the face of such provocation, forbear f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mortality of its creator and any mutation of the creature is without any referral to the creator. This conundrum may be explained further in the context of the scheme of tax administration. 18. The constitutional mandate to deprive themselves of a part of their possession as tax is conferred on the State by its citizens. The means of recovering tax is vested in designated administrators by the legislative organ of the State. And the enforcement through fiscal punitive is a temporary empowerment under the taxing statute. All three coalesce to bring forth an adjudication order and, with that consummation, the former two give up the ghost of the third forevermore. It is left to these two to defend or assail that consummation. The question that begs answer now is the erasure of an entity acknowledged by a statute which are adjudicating authorities. For the answer to that, we look to the Customs Act, 1962. 19. If the adjudicating authority had a status co-terminus with the statute and not with the instrument of recovery, i.e. the show cause notice, the authority to initiate alteration would have been vested in the adjudicator. That it is not so is clear from sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. Rules 19, 20 and 21 of Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1992 mandates hearing of the appellant; the respondent is to be heard only if necessary. The disposal of the appeal, on merits or dismissal for default, turns only on the presence of the appellant. That both sides are heard in most of the cases before arriving at a decision manifests our commitment to principles of natural justice. Learned Special Counsel for Revenue has not been denied an opportunity to rebut. The grant of request for adjournment, with or without modification, is the prerogative of the court and a court is answerable only to higher judicial authorities; courts justify their action in record and for a litigant to cavil at an order of the court without seeking appellate remedies may be ignored as infantile if such litigant were not vested with statutory authority. It is also apparent that the applicant has not sought for and perused the records of hearing held on 8th January 2018. Seeking an expunction of records without knowledge of the contents bespeaks a mind that is best left undescribed. It is indeed saddening that high public office is held by such persons who appear t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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