Customs, Excise and Gold Tribunal - Tamil Nadu
Kirtilal Kalidas Diamond Exporters vs Collector Of Customs on 7 April, 1989
Equivalent citations: 1989(44)ELT251(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. This is an application under Rule 41 of the CEGAT (Procedure) Rules, 1982 seeking to recall the order of the Tribunal No. 205/1988, dated 12-4-1988.
2. Order No. 205/1988 of the Tribunal was passed in Customs Appeal Nos. 487 to 489/1987 filed by the Collector of Customs, Madras, in which the present petitioner herein was the Respondent. The hearing of the said appeals before the Tribunal was posted to 12-4-1988 in regard to which notice to the petitioner herein had been sent as per law. The petitioner herein, who was Respondent in the said Appeals, was not present on the date of hearing nor had he sought for adjournment of the hearing. In the result the Tribunal after hearing the Senior D.R. for the appellant viz. the Collector of Customs, Madras, disposed of the appeals on merits. The petitioner herein aggrieved by the said order of the Tribunal has filed the present application seeking to recall the order of the Tribunal.
3. Shri Habibullah Badsha, the learned senior counsel for the petitioner, submitted that though the petitioner herein had received the hearing notice and had not asked specifically for an adjournment inasmuch as he had sent a communication to the Registry dated 16-3-88 seeking for a copy of the appeal petition, the Tribunal could have adjourned the appeal and afforded the petitioner herein an opportunity of being heard.
4. The learned senior counsel further submitted that though the Tribunal had disposed of the appeal on merits the Tribunal would be well within its jurisdiction in setting aside that order and reposting the appeals for disposal on merits in terms of Rule 41 of the CEGAT (Procedure) Rules, 1982 to secure the ends of justice. The learned counsel placed reliance on the ruling of the Supreme Court in the case of Income-tax Officer, Cannanore v. M.K Mohammed Kunhi, reported in 1969 (71) I.T.R. 815. The learned senior counsel also placed reliance on the ruling of the Tribunal in the case of Comexco, Bombay v. Collector of Customs, Madras, decided on 5th April, 1984 in M.A. (MAS) No. 18/83 in A.No. CD(T) (MAS) 89/80. It was urged that the ruling of the Supreme Court cited supra was also relied upon by the Kerala High Court in the case of Commissioner of Income-tax, Tamil Nadu-IV v. Income-tax Appellate Tribunal and Anr., reported in 1979 (120) I.T.R. 231, wherein the Division Bench of the Kerala High Court has taken the view that though no specific provision was made in the Rules to enable the Income-tax Appellate Tribunal to set aside an ex parte order passed on merits the Income-tax Appellate Tribunal must be presumed to have such power under Section 254(1) of the Income-tax Act, 1961 for setting aside the ex parte order in the interests of justice.
5. Shri Bhatia, the learned Senior D.R. submitted that admittedly the petitioner was served with a notice of hearing in the appeal filed by the Collector of Customs, Madras, referred to above and admittedly the petitioner herein did not appear for the hearing nor sought an adjournment. In such circumstances the Tribunal disposed of the appeals on merits and there is absolutely no justification either in law or on facts for setting aside or recalling that order. The learned Senior D.R. further submitted that the Tribunal also would not have jurisdiction to set aside its earlier order passed on merits on due consideration of the materials on record, since the same would amount to review not permissible under law. The learned Senior D.R., therefore, prayed that the petition may be dismissed.
6. We have carefully considered the submissions made before us. Before going to the questions of law convassed before us, we should like to state certain relevant facts. The order No. 205/1988, dated 12-4-1988 was passed by the Tribunal in Customs Appeal Nos. 487 to 489/1987 in which the Collector of Customs, Madras, was the appellant and the present petitioner was the Respondent. Intimation was sent to the Respondent in the said appeal on 19-10-1987 by registered post acknowledgment due, forwarding to the Respondent a copy of the Memorandum of Appeal. Thereafter, for the hearing fixed on 12-4-1988 notice under registered post acknowledgement due was sent on 10-3-1988 and the same was also duly received by the Respondent. These facts are admittedly and are not denied. On the date when the appeals were taken up for hearing on 12-4-1988 the Respondent in the Appeal did not appear nor admittedly seek any adjournment either. In such circumstances the Tribunal heard the appeals and disposed them on merits. If the petitioner really had not received copy of the appeal petition, we are at a loss to understand as to why he did not make any grievance at all about it for the period of about 5 months. No arguments were advanced in this regard. Apart from it, no submission was also made as to why the petitioner did not admittedly seek for an adjournment of the hearing on 12-4-1988 if he was really handicapped by the alleged non-receipt of a copy of the appeal petition filed by the Collector of Customs, Madras. The records in the registry clearly show and establish that the copy of the appeal petition had been sent by registered post acknowledgement due on 19-10-1987 itself. In these circumstances there is absolutely no justification at all for the petitioner to contend that there was violation of natural justice in respect of the order passed by the Tribunal on 12-4-1988 under Order No. 205/1988.
7. The substance of the plea of the learned senior counsel for the petitioner is to set aside the order of the Tribunal dated 12-4-1988 take up the appeals and re-hear the appeals for disposal on merits. This would amount to the Tribunal being called upon to review its own order, which is not permissible under law. The Tribunal is the creature of statute and does not have powers of review. It is also well settled that the power of review is not an inherent power and it must be conferred by law either specifically or by necessary implication and there is no provision under the Customs Act, 1962 clothing the statutory Tribunal with power of review. This position is no longer res integra and is covered by the authoritative pronouncement of the Supreme Court in the case of Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, reported in AIR 1970 S.C. 1273. That was a case which arose out of Saurashtra Land Reforms Act, wherein no power of review was conferred on the authorities. The full Bench of the Madras High Court in the case of Ram Chandra v. Beero Pollai, AIR 1936 Mad. 531 (FB) has held "Generally no court has got a power of revising its own appellate orders nor has a Court the power of review unless specifically conferred on it". The Full Bench of the Mysore High Court in Sampu Gowda v. State of Mysore reported in AIR 1953 Mysore 156 (FB) has held "Review is a remedy to be sought for an applied under special circumstances. The jurisdiction or power to review cannot be assumed or imported in the absence of any specific provision therefor or of even indication of the conditions for the exercise of it." The Supreme Court recently in the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, reported in AIR 1987 Supreme Court 2186, while considering a case arising under U.P. State Universities Act (President's Act 10 of 1973) has held that "It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives is jurisdiction...." In the instant case "The Vice-Chancellor...acts as a quasi-judicial authority."..."In the instant case, the Vice-Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction. Indeed, the order passed by the Vice-Chancellor on review was a nullity." The learned counsel for the petitioner also did not dispute the legal proposition before us that the power of review is not available under the Act to the Tribunal nor is there any inherent power for a creature of a statute like Tribunal clothing it with any power of review. The Tribunal rules also have not vested the Tribunal with any power of review.
8. The reference by the learned counsel for the petitioner to the ruling of the Supreme Court in the case of Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi, referred to above, has no relevance or application to the facts and circumstances of this case. In Mohammed Kunhi's case the Supreme Court was merely called upon to pronounce on the scope of Section 254 of the Income-tax Act, 1961, particularly with reference to the fact as to whether the power to entertain appeal carries with it the duty in proper cases to make such orders for staying the recovery proceedings pending disposal of the appeal. The ratio of the decision of the Supreme Court is that the power to entertain an appeal would include the power to grant stay though there may not be a specific provision for the grant of stay during the pendency of an appeal. It was held that when an authority is invested with appellate powers, grant of stay was a necessary corollary to the power to entertain an appeal or revision and is incidental or ancillary to the exercise of appellate jurisdiction. Mohammed Kunhi's case before the Supreme Court also arose under the provisions of the Income-tax Act, 1961 when the Income-tax Appellate Tribunal, while being in seisin of an appeal under the Income-tax Act, dismissed an application for an interim prayer for stay of collection of the penalties pending appeal on the ground that there was no specific powers to the Tribunal for grant of such stay though the Tribunal was invested with power to entertain an appeal. It is only in that context the Supreme Court in that case held that when a statute confers appellate jurisdiction on appellate authority it impliedly grants the power of doing of such acts or employing such means as are essentially necessary to its execution and that the statutory powers of appeal carries with it the duty in proper cases to make such orders for staying proceedings as to prevent the appeal if successful from being rendered nugatory. The Division Bench of the Kerala High Court in the case of Commissioner of Income-tax, Tamil Nadu v. Income-tax Appellate Tribunal and Anr., referred to above, held in the facts and circumstances of that case that if a reasonable opportunity of being heard to the aggrieved party had not been given and the appeal had been disposed of ex parte on merits, notwithstanding the fact that no express provision may have been made for setting aside such ex parte orders, in those circumstances such a power must be presumed under Section 254 of the Income-tax Act, 1961 for setting aside the ex parte order in the interests of justice "when the Tribunal is clear in its mind that the provision under the sub-section in its true spirit had not been complied with in passing the ex parte order." The ratio of the ruling is that if an ex parte order on merits has been passed without conforming to the rules of natural justice and without the appellant having been afforded an opportunity of being heard in accordance with law, in such a situation the Tribunal can set aside the ex parte order and reopen the matter "to afford an opportunity of being heard to the aggrieved party. The Division Bench has clearly held "In the absence of any manifest injustice to any party, even assuming that the Tribunal had committed an irregularity, a technical error in doing so, this court will be slow to exercise the extraordinary power under Article 226 of the Constitution to perpetuate an injustice." As we have already held, in the present case admittedly the petitioner was served with a notice well in advance and the petitioner did not appear for the hearing nor seek any adjournment and absolutely no explanation was also given for the petitioner's absence during the hearing. Therefore, the petitioner cannot with any justification complain either want of opportunity or breach of natural justice. If it should be held, as contended by the learned counsel for the petitioner, that the order passed by the Tribunal on merits ex parte should be set aside, even if the party has not sought for an adjournment nor was in any way disabled from participation in the proceedings; it would lead to abuse of process of court and put a premium on the latches of a party. We, therefore, cannot countenance such an argument. If a party after due notice and opportunity chooses to absent himself without even so much asking for an adjournment and does not even have any justifiable reason for his absence or non-participation in the hearing, he cannot be permitted to take advantage of his own latches or lapses in seeking to set aside the order. As a matter of fact the Supreme Court in the case of Commissioner of Income-tax, Madras v. S. Chenniappa Mudaliar, reported in AIR 1969 Supreme Court 1068, while dealing with the scope of Section 33(4) of the Income-tax Act, 1922, approved the ratio of the Special Bench ruling of the Madras High Court which held "Section 33(4) obliges it (Tribunal) to decide an appeal, after giving an opportunity to the parties to put forward their case. The giving of the opportunity only emphasises the character of the quasi-judicial function performed by the Appellate Tribunal. The fact that that opportunity is not availed of in a particular case, will not entitle the Tribunal not to decide the case". The ruling of this Tribunal dated 5th April, 1984 in the case of Comexco v. Collector of Customs, Madras, in M«A.(MAS) No. 18/1983 in A.No. CD(T)(MAS) 89/1980 relied upon by the learned senior counsel for the petitioner would not help the petitioner in any way. That was a case where the hearing of the appeal was fixed on 2-5-1983 and the notice for the same was sent to the party on 6-4-1983. The party had engaged a counsel at Bombay, who by his communication dated 19-4-1983 sought for an adjournment and the Tribunal adjourned the case from 2-5-1983 to 4-5-1983 but unfortunately the communication adjourning the hearing to 4-5-1983 was sent to a wrong address and the hearing notice was received by the party only on 16-5-1983. Therefore, in those circumstances since admittedly the notice of hearing itself had not been served on the party before the date of hearing and the order came to be passed, the Tribunal recalled its order on grounds of violation of natural justice. We have gone through the entire original records in that case and ascertained the above facts and presumably the learned senior counsel for the petitioner was not aware of the above factual background. As the Bombay High Court has held in the case of Khushalchand B. Daga v. T.K. Surendran, 4th ITO, (1972) 85 ITR 48, that the Tribunal should not allow a party to suffer for its own mistake. The Supreme Court also in the case of Sub-Divisional Officer (Compensation Officer) Mirzapur v. Raja Srinivasa Prasad Singh, reported in AIR 1966 SC 1164, held that" a decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party, and the court may in such a case reopen the proceedings to have the party an opportunity to state its case". No doubt that was a case in which notice to the necessary party was not served unlike in the present case in which admittedly notice was served on the petitioner.
9. Apart from all other things, even in the impugned order the Tribunal has only set aside the order of adjudication appealed against by the Collector of Customs, Madras, and remanded the matter. The Tribunal in the impugned order has held that "the impugned order is set aside and the appeals are remanded to the Collector of Customs, Madras, for deciding the issue de novo relating to the quantum of fine in lieu of confiscation of the imported goods. We also leave open the question of personal penalty with a direction that this issue also be decided afresh by the Collector after giving the respondents an opportunity of hearing and in accordance with law." The petitioner herein can by no stretch of imagination contend to be aggrieved by the above order of remand, since the issue is now at large and the petitioner would have all opportunities to put forth his plea. Therefore, in the context of the above order the plea of the petitioner seeking to recall the order, which in substance is for re-hearing of the appeal, would be purely academic.
10. Therefore, On consideration of the entire materials on record, we do not find any merit in the petition and the same is accordingly rejected.