C P AQUACULTURE INDIA PVT LTD Vs. PRESIDENT THE CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL NEW DELHI

JUDGEMENT

(1.) BOTH the writ petitions are arising out of appeal proceedings in Appeal No.C/07/2009 pending before the Appellate Tribunal. While 26465 of 2009 is filed to quash the order of the first respondent/President of the Board dated 17.07.2009 thereby laying down certain directions in respect of the pending matters, WP.No.26465 of 2009 is filed for directing the appellate Tribunal to pass detailed order in line with the gist of decision pronounced recorded and signed in open court on 04.06.2009 in the appeal proceedings of the petitioner.

(2.) THE brief facts which are relevant for consideration herein are as follows: THE petitioner has filed an Appeal in C7/2009 before the 2nd respondent/Appellate Tribunal against the order dated 10.11.2008 passed by the Commissioner of Customs, Chennai. THE appeal was at the instance of the petitioner posted for hearing on 04.06.2009 on which date argument was advanced on both sides for considerable length and the members of the Appellate Tribunal has after the hearing is concluded pronounced in open court the gist of decision in writing as "Appeal allowed" and both the members have signed the same on the same day and postponed the pronouncement of the detailed order by the Member (Technical) by name C.Karthikeyan with endorsement made by both the Vice-President and Member to the effect that it is for the member (Technical) to pass order. While the parties were awaiting detailed order following the gist of decision, a note was forwarded to the Vice President on 22.6.2009 by the Member Technical for re-hearing of the appeal on certain grounds and the same was endorsed by Vice President of the Tribunal and on the basis of the note dated 22.6.2009, the appeal was posted for rehearing on 30.6.2009 and the same compelled the petitioner to come forward with the Misc. Application No.C/MISC./252/09 praying to pass detailed order in line with the gist of the final decision pronounced in the open court on 4.6.2009 without re-hearing the appeal. It is stated in the petition that once the operative portion is finally pronounced in the open court after hearing both sides and the order sheet is signed by the members, the appeal reached its finality and the same cannot be reopened for rehearing and there is no provision under Customs, Excise and Service Tax Appellate Tribunal procedure Rules (herein after referred to as "CESTAT Rules") to do so and the posting of the appeal for rehearing after pronouncement of the gist of final decision amounts to reviewing the order, for which, there is no provision in CESTAT and once the final order is passed, the Tribunal renders itself functus officio in relation to such matter and it cannot suo motto modify or alter the decision which is already pronounced in the open court. Pending this petition, the President of the Tribunal passed an order on 17.7.2009 thereby laying down certain guidelines in the matter of delivery or pronouncement of the order by the tribunal and the order contains 10 directions, out of which cl.4 and 5 are the subject matter of challenge in W.P.No.26465/2009. THE order dated 17.7.2009 was also followed by another order in 5/2009 dated 21.7.2009 as per which the order no.4/09 dated 17.7.2009 is directed to be made applicable to all pending matters as on 17.7.2009. It is not in dispute that after rehearing the petitioner's appeal and the application are till date not disposed of. Pending the same, the petitioner has come forward with the present two writ petitions for the reliefs as stated supra.

(3.) THE learned counsel for the petitioner and the respondents have also in support of their respective contentions cited catena of judgments of Supreme Court, our High Court and other High Courts.