Customs, Excise and Gold Tribunal - Delhi
Oil And Natural Gas Commission vs Collector Of C. Ex. And Customs on 30 June, 1992
Equivalent citations: 1992(61)ELT276(TRI-DEL)
ORDER R. Jayaraman, Member (T)
1. In the aforesaid matters, a preliminary objection has been raised by the department on the basis of the Supreme Court's directive in the case of ONGC in Civil Appeal No. 2058-59 of 1988 pertaining to the disputes between the Govt. of India and Public Sector Undertakings to the Govt. of India, hence this common issue was heard and is proposed to be disposed of by this common order. The applicants/appellants are Public Sector Undertakings of the Govt. of India and they have come to the Tribunal by way of appeals against the orders of the lower authorities. In some cases they have also moved stay applications, seeking for stay of enforcement of dues adjudicated.
2. Shri K.K. Bhatia, Jt. CDR appearing for the revenue, submitted that all the disputes between the Public Sector Undertakings and the department pending before the Tribunal should not be heard, till the Committee of Secretaries gives clearance for pursuing these litigations. He read out the relevant portion of the Supreme Court's directive and submitted that the Committee of Secretaries has already been set up and it is for the Public Sector Undertakings to move the Committee through their concerned Secretary, having administrative control over these undertakings for settlement of the disputes with the department or on failure of settlement, to obtain a clearance from that Committee for proceeding further with the litigation before the Tribunal. They contended that the directive of the Supreme Court is to all the Courts and the Tribunals and in the interest of judicial discipline and decorum, this directive should be respected. It is not a matter open for giving legal interpretation of these directives because the directives of the Supreme Court are not in the nature of case law or a judgment. Hence, the directive, as a whole, is bound to be followed by the Tribunal and the Courts, in respect of pending issues before them as well as the issues that are likely to come in the future. In this context, he also referred to the Circular issued by the Registrar of the Delhi High Court, whereby the Public Sector Undertakings have been directed to get the clearance from the appointed Committee before filing any writ petition or appeal before the High Court. His submission was that if the matters relating to Public Sector Undertakings are taken up for hearing, it would defeat the very purpose of the directive, which was intended to save public money and time involved in these litigations.
3. Heard the learned advocates S/Shri A. Hidayatullah, B. Dutta, P.C. Anand, A.N. Haksar, Sanjeev Grover, C.L. Kalia, R.K. Joshi, Vinay Garg, advocates, and Shri S.N. Mathur, consultant on behalf of the Public Sector Undertakings. The main thrust of the arguments of the counsels on behalf of the Public Sector Undertakings can be summed up as below:
(i) The directive of the Supreme Court cannot be construed to take away the statutory rights provided in the law giving them the right of appeal. It is a settled law that when the statute provides for the right of appeal, it originates the moment, the dispute arises falling within the purview of the adjudication;
(ii) Even if it is construed to be a directive, not a case law for interpretation, the wording of the directive is quite clear to refer to only dispute arising after issue of the directive or after appointment of the Committee and our attention was particularly drawn to the word 'hereafter' in the said directive, to emphasise on this aspect.
(iii) The directive refers to disputes and not to rights arising out of law. The Supreme Court cannot legislate or be a substitute for the legislator, when the statute has provided a particular procedure and that procedure is sought to be impaired. That can be done only by legislation. In this context AIR 1988 Supreme Court 1531 and 1991 (4) SCC 4% were referred to;
(iv) When the statute provides for an appellate remedy and the revenue seeks to enforce the dues to their prejudice, the fundamental rights of the citizens mentioned in Articles 19 and 32 of the Constitution cannot be said to be ignored. The right of the citizens available in the statute cannot be said to have been taken away by the Supreme Court directive;
(v) The statute casts a responsibility on the Tribunal to decide an appeal brought forth by the appellants. The Tribunal cannot avoid to decide all these appeals when the appeals are so brought forth as laid down in the statute;
(vi) The directive given by the Hon'ble Supreme Court cannot be taken to be a law pronounced under Article 141 of the Constitution. Hence, such a directive cannot be binding as a case law;
(vii) Referring to the Supreme Court directive, it was pleaded that the first part of the directive expresses happiness about the Cabinet Secretary having taken the appropriate initiative as per their order dt. 11-9-1991. Second part of the directive deals with the Government's eagerness to resolve amicably by mutual consultations all the disputes between the Government and the Public Sector Undertakings without recourse to litigation. The third part deals with the directive to the Govt. of India to set up a Committee to monitor disputes and to ensure that no litigation comes to the Court or to the Tribunal. The fourth part indicates that it shall be the obligation on every Court and Tribunal, where such a dispute has arisen hereafter, to demand the clearance from the Committee, in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with. On pointing out the aforesaid provisions, it was pleaded that even it is construed to be a mandate from the Supreme Court, this mandate is operative only prospectively and cannot be said to be operative, in regard to disputes, which have come to the Tribunal before setting up of the Committee, as directed by the Supreme Court. Moreover, when matters have been adjudicated by the quasi-judicial authorities the question of refusing to entertain the appeals arising therefrom does not arise. The decisions in 1964 ECR 362 and AIR 1975 SC 1843 were referred to in this context.
5. Insofar as the stay applications are concerned, they are in the nature of grant of interim relief only and not deciding the disputes finally. Hence, they could be construed to be outside the purview of the directive.
6. We considered the submissions made by both the sides. For proper appreciation, it would be necessary to reproduce the relevant portions of the order of the Supreme Court passed in the case of ONGC - Civil Appeal No. 2058-59 of 1988.
"We direct that the Government of India shall set up a Committee consisting representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and Public Sector Undertaking of the Government of India and Public Sector Undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the Ministry of Finance in the Committee. Senior officers only should be nominated so that the Committee would function with status, control and discipline.
It shall be the obligation of every Court and every Tribunal, where such a dispute is raised hereafter to demand a clearance from the Committee, in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with.
The Committee shall function under the ultimate control of the Cabinet Secretary, but his delegate may look after the matters. This Court would expect a quarterly report about the functioning of this system to be furnished to the Registry beginning from 1st January, 1992.
Our direction may be communicated to every High Court for information of all the courts subordinate to them."
7. From the above it is clear that the Supreme Court, in the public interest of saving public money and time is keen to settle the disputes between the Public Sector Undertakings and the Govt. departments amicably by a process of arbitration and settlement from the appointed Committee of Secretaries and in pursuance of this desired objective, the directive has been given by the Supreme Court not only to the Govt. but also to the Courts and the Tribunals. It is needless for us to go into the question as to whether this could be construed to be a Case Law and could be interpreted, as to whether they are applicable to the future disputes or to the disputes already pending. Any such clarification could only come from the Supreme Court, to which the parties can approach, if they are so advised. The directives are quite clear and simple that all the disputes between the Public Sector Undertakings and the departments of the Govt. are required to be settled through the appointed Committee and if it fails, the clearance from the Committee is to be produced before proceeding with the litigation. In view of the aforesaid position, it would amount to judicial impropriety and lack of judicial decorum for us to sit in judgment over the directive or to interpret it, in any manner, on our own. The directive is quite clear that we should keep our hands off from dealing with these matters, till clearance from the Committee is produced by either side. We also take note of the submissions made by some of the Public Undertakings that refunds are claimed by the Public Sector Undertakings and on their rejection the matters have come up before the Tribunal, blocking considerable sums due to them. There are some cases where demands are sought to be enforced against the Public Sector Undertakings in respect, of which appeals have been filed. It is not as though no remedy has been provided by the Supreme Court in the aforesaid directive. It is open to them to approach their Secretary and bring the matter before the appointed Committee for an early settlement and also for the grant of interest in respect of the blocked refund. On that ground, they cannot persuade us to ignore the directive and go into the merits of the appeal contrary to the Supreme Court directive.
8. In the case of stay applications, we are to take note of the fact that the revenue is also a party to the directive of the Supreme Court. It is not as though the directive is only for the Public Sector Undertakings. Hence, it is incumbent on the revenue not to take coercive action, till the settlement of the disputes by the appointed Committee of the Secretaries. In all fairness and also in order to implement the directives of the Supreme Court, the department should not seek to enforce the dues adjudicated, till the aforesaid action is completed. This is the view, which has been taken by West Regional Bench in the case of similar stay petitions brought forth by the Public Sector Undertakings vide 1992 (19) ETR 322 - Digvijaya Textile Mills (NTC) v. CCE, Bombay-Iand Baroda.
9. In the result, we observe that the directive of the Supreme Court is not open to interpretation by us on our own. The Supreme Court's directive is to be respected by us in the public interest of saving money and time. The Apex Court have not taken away the statutory remedy of filing appeal. It is open for the Public Undertaking to file appeals for complying with the statutory time limit. But they are to approach the Committee of Secretaries, notwithstanding their appeals before us. This is what we would understand from the Supreme Court directive. Revenue also being a party to the directive, should not resort to coercive measures till the settlement by the appointed Committee of Secretaries.
With these observations, we dispose of this preliminary issue raised.
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(R. Jayaraman) (S.L. Peeran)
Member (Technical) Member (Judicial)
G.P. Agarwal, Member (J)
10. I have had the advantage of going through the Order proposed by my learned brother Shri R. Jayaraman (Technical Member).
11. At the outset, I find that different Benches have taken a different view relating to the controversy in hand. In the case of Digvijay Textile Mills (N.T.C.) and Anr. v. Collector of Central Excise, Bombay-I & Vadodara, 1992 (19) E.T.R. 322, the West Regional Bench of this Tribunal at Bombay had taken a view that in view of the direction given by the Apex Court in the case of MA. O.N.G.C. v. Collector of Central Excise (referred to in the proposed Order), the Bench is not entertaining even the Stay Application till the clearance from the Committee is produced before the Bench and the Department should also wait the outcome of the decision of the Committee whereas the Special Bench-B in the case of O.N.G.C. v. Collector of Customs, Calcutta, Order No. C/139 & 140/1991-B2, dated 19-12-1991 [1992 (59) E.L.T. 420 (Tri.)], held that the appeals can be entertained as vested right of appeal cannot be taken away. For ready reference the said observation may be reproduced below :
"... He also stated that the judgment of the Supreme Court in the case of ONGC v. UOI, where there is a direction that the matters are to be heard by a Committee constituted by the Cabinet Secretary and not to be heard by the Tribunal will not apply in these cases where a regular judicial order has been passed and the right of filing of appeal is given by the statute. Shri S.K. Roy, the learned SDR, who appeared on behalf of the Revenue, has fairly stated that the issue appears to be covered by the earlier decisions and as such he has no objection if these matters are also taken up with the other matters already listed.
2. We have heard both the sides and have gone through the facts and submissions of the learned Senior Advocate that the ratio of the Supreme Court decision for not hearing matters in respect of Public Sector Undertakings will not apply to those cases where a regular judicial order has been passed and the right of the filing of appeal is being vested by the statute to a citizen/Public Sector Undertakings. In the interest of justice, the matters are listed on 10-3-1992. In the result, the Misc. Applications are allowed."
Emphasis Supplied
12. That apart, a copy of the Circular said to have been issued by the Hon'ble Delhi High Court (as referred to in Paragraph 2 of the proposed Order) was also produced before us wherein the Hon'ble Delhi High Court has directed its Registry not to entertain any appeal filed by the Public Sector Undertakings until it is accompanied by the clearances from the Committee appointed in terms of Order passed by the Apex Court in the case of M/s. O.N.G.C., supra.
13. In view of the above and keeping in view the fact that the controversy raised before us is of public importance affecting any number of parties and the appeals pending before this Tribunal which are quite substantial in number, I feel it expedient in the interest of justice that papers may be placed before the Hon'ble President for constituting a Larger Bench to decide the controversy in hand keeping in view the aforesaid conflicting decisions of the Tribunal, I order accordingly.
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(G.P. Agarwal) Judicial Member Majority Order
14. In terms of the majority order, the preliminary issue raised in the above appeals is disposed of in the following terms -
(i) In terms of the Supreme Court's directive in the case of ONGC v. Union of India, the appeals of Public Undertakings are to be heard by a Committee of Secretaries constituted by the Cabinet Secretary, notwithstanding the appeals pending in the Tribunal;
(ii) The Revenue also being a party to the directive, should not resort to coercive measures till the settlement by the appointed Committee of Secretaries.
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(R. Jayaraman) (S.L. Peeran)
Member (Technical) Member (Judicial)
15. I am signing the majority view recorded by the Ld. Judicial Member and concurred by the Ld. Technical Member with reservation as in my considered opinion it does not flow from the order written by them for, it nowhere says that appeals of Public Undertakings are to be heard by a Committee of Secretaries constituted by the Cabinet Secretary.
Sd/ (G.P. AGARWAL) JUDICIAL MEMBER