By TIOL News Service

MUMBAI, MAY 02, 2014: WHILE dismissing the appeal filed by M/s Zenith Computers Ltd. 2014-TIOL-623-HC-MUM-ST against the order passed by the CESTAT, dismissing their ROM application filed against the order of the CESTAT referring the matter to the Third Member on account of difference in opinion, the Bombay High Court also made the following observations on the ‘disturbing trend of Members of Tribunal routinely rendering differing opinions on factual matters' necessitating reference to a Third Member -

++ It is with some pain and anguish that we have noted the grievance of the Counsel that occasions of the aforesaid nature are frequently occurring and that hampers the administration of justice, equally that affects the working and functioning of the Tribunal. The Tribunal comprising of Member (Judicial) and Member (Technical) is conferred with a special jurisdiction. It is expected to deal with the matters arising under the Special Act fairly and expeditiously and to enable the Tribunal to do so that its composition is as noted by us and of the above nature. The experience drawn from the Technical side is combined with the judicial wisdom. By combining it the Tribunal is expected to decide the issues arising in special cases. The Tribunal, thus, is manned by persons drawn from both, the technical and judicial side.

++ The query was 'whether difference in opinion on any point can be said to be difference in opinion on facts as well.' Section 129C(5) and sub-section (3) of Section 98 of the Civil Procedure Code is complete answer to our query.

++ The peculiar language of this provision and the position of the Tribunal in law as a last fact finding authority would enable us to arrive at a conclusion that by sub-section (5) of Section 129C of the Customs Act, it is possible for the Members of the Tribunal to record differing opinions on any point including facts. However, here we may sound a note of caution. That the Tribunal as a last Appellate Court should equally be aware of the powers conferred on the Appellate Court. An Appeal is a creature of a Statute and is not an inherent right of the Litigant. In appeal, the original order is brought before the Court of appeal for being challenged on law and facts.

++ In the scheme of the Customs Act, the Tribunal has been empowered to decide appeals. We wish to emphasise that the Tribunal is not always deciding appeals against original orders. It can be approached against some appellate orders as well. The sub-sections of Section 129A would show that the appeals lie against various orders and in varied situations. The Tribunal, therefore, should be mindful of the salutary principle which the Hon'ble Supreme Court has enunciated while dealing with the Appellate powers in its decision in the case "Mohd. MehtabKhan &Ors. Vs. Khushunma Ibrahim &Ors." reported in "AIR 2013 SC 1099" .

++ Thus, even when seized of an appeal against the order passed by the appellate authority or an original order, this principle has to be borne in mind. The Appellate power has to be exercised so as to correct such errors as are referred by the Hon'ble Supreme Court. Equally, due regard and respect must be given to the opinion of the original Authority/Appellate Authority. If the view taken is possible, plausible and probable, then, merely because another opinion can also be rendered on the same facts, every order under appeal need not be interfered with. If this salutary principle and extended by this Court to judicial discipline is borne in mind, there would be few occasions for the Tribunal Members to differ on factual matters and an overall perspective is the requirement in such matters.

++ A broad attitude accompanied by robust common sense is what is expected from the members of the Tribunal.

++ If they bear in mind the parameters and limitation of Appellate power, there would not be a friction and conflict in the Tribunal. It does not augur well when there is tension in judicial proceedings. The word 'adjudication' ordinarily means to act and decide judicially. The word 'acting judicially' is not performing some rituals or completing somehow the assigned work, but is a serious business. It requires continued application of mind and alertness. It should not be undertaken casually. No one can approach judicial proceedings in a light-hearted manner. If differing opinions are rendered frequently, then, that creates an imbalance.

++ Certainty and consistency are necessary as that alone instills confidence in the Institution of Judiciary and enables it to earn respect and regard for it. The trust and faith in it is then reaffirmed. Its efficacy is maintained. Then, Rule of Law prevails. The administration of justice and conferment of judicial power is intended to reach this goal. No litigant should thrive on uncertainty and un-predictability. If these basic rules of judicial discipline are not abided by and followed meticulously, there will be several complications and which would, then, require not just judicial intervention by the Higher Court but equally by the Parliament.

++ The members of Tribunal should bear in mind that the Legislature expects them to give finality to certain matters. They are not expected to be left open endlessly. It is often said that lesser the Number of Appeals or interference by the Higher Courts the better it will be for the system. Justice delivery should be expedient and efficient.

++ Ultimately, the Adjudication cannot be to go on and on. It must end at some stage and at least on factual issues. The issues and matters with regard to levy of tax including customs duty in this case ought to attain finality so as to sub-serve larger interest of justice. It does not augur well for the economic and the business world and equally for judicial fraternity that matter lingers on and issues are left open giving unending scope for differing opinions and views. That enables the litigants to take chances and resort to even forum shopping. This needs to be avoided at all costs.

++ No member, judicial or technical, is above the law. The Supreme Court's decisions and particularly cautioning the Appellate Tribunal/ Court/ Authority should, therefore, guide the Tribunals in exercise of their appellate power.

We expect that the Tribunal at least now takes cognizance of our anxiety and the note of caution. The Tribunal should bear in mind that in the present case when the original order was delivered on 20.6.2012, the order on rectification application was passed on 11.10.2012, till the end of April,2014 nothing has been achieved. The issues and the matters are kept pending.

++ The delay in deciding tax cases upsets not only the Assessee but the Revenue. In a given case it may have adverse impact on the collection of duty. Equally the assessment or valuation proceedings should not drag on and remain pending for years. Thus, avoiding the delay in disposal of cases is an object which needs to be achieved, particularly, when the period for disposal of the appeal is prescribed by law. That may not be binding and there is no mandate flowing therefrom but the provision in that behalf cannot be brushed aside and discarded.

++ If the Tribunal keeps the matter pending in this manner and leaves the issues and questions undecided, then, it may be urged that the very purpose of setting up a specialised Tribunal is defeated and frustrated. The Litigant should not come with such grievance or urge that they were better off before an ordinary Civil Court rather than these specialised Tribunals.

++ We would expect the Tribunals, at least now, not to keep the references pending and give them priority and earmark them for early disposal. True it is that haste may result in waste but that is not always the experience. The need for urgency in some cases does not mean the Presiding Officer has to act hastily or in an irresponsible manner. He must minimise the adjournments and postponement of Adjudication on trivial grounds.

++ When day in and day out the Tribunal is deciding the matters only under the Customs, Excise and Service Tax Acts, then it is expected to be well versed with the law and is expected to be also aware and informed of the latest developments in the business and economic world. The Scientific and Technological advancement can never be lost sight of. This is a normal expectation from those manning the Tribunal.

++ It is expected that Member (Technical) and Member (Judicial) work in coordination and in tandem. They ought to match their experience in their respective fields, their expertise in rendering a quality judgment. This harmony and order has to be maintained on the Bench and in all causes. The Tribunal Members should bear in mind that litigants would suffer and eventually justice would be a casualty if there are frequent differences of opinion resulting in matter being referred to a third Member.

++ The experience shows that virtually the same members assemble for work day in and day out. If there is lack of cordiality and co-operation between them, then, the composition of the Tribunal itself may have to be altered.

++ It is not possible and frequently to replace members or alter the composition of benches. The President is not expected to address such issues repeatedly. In these circumstances, we expect a better understanding and coordination between the members manning this Tribunal.

++ At one time this Tribunal was known for its professionalism and expertise. The decisions were rendered efficiently and quickly. It was one of the best Tribunals and its example was cited even during the course of imparting training to the Judicial Officers at Academies. Its working resulted in saving time and costs. Further, both the Revenue and Assessee knew where they stand in terms of the Applicability of Tax laws. That serves larger Public Interest and guarantees Economic Justice to all.

++ We would now at least expect the Tribunal to work in a manner so as to uphold the object and purpose of the Act. It may not to be out of context if we remind the members of the Appellate Tribunal of the practice, tradition Customs followed over decades by the Judges and which have been referred by the Hon'ble Supreme Court in several judgments.

++ "Cooperation can be achieved and tension avoided between two judicial Institutions if only judicial collegiality is learnt, nobility prevails and Holmes' humility rules" - TirupatiBalaji Developers Pvt. Ltd.&Ors. Vs. State of Bihar &Ors." reported in "AIR 2004 Supreme Court 2351-

The above lines are a reminder to all in the fraternity and family including us. As a result of the above, we are of the view that nothing needs to be said further.

++ We would expect the Tribunal to take all this in the right spirit. We are not at all critical of the manner in which the Tribunal is functioning and working.

++ We are aware of the fact that at times large number of cases take a toll on the Judicial Officers or the Members. Pressure of work and docket explosion requires one to work tirelessly.

++ However, Cordiality, Co-operation, Courtesy and respect for each other's view would assist in avoiding divergence of opinion on factual issues. If the view held by the other is possible, then, nothing is lost in going by it and if that furthers the cause of justice.

++ To avoid differences of opinion on Mixed and purely factual matters, to foster the spirit of brotherhood and uphold judicial fraternity that we have invited the attention of all concerned to the above Judgment of the Supreme Court. Beyond that we may not be understood to have said anything and in disapproval.

++ We have also not made any comments much less adverse and which may be taken as a reflection on the working of any of the members in this case. It is only the increasing tendency to record a dissent that has prevailed us to take note of the grievance raised before us. We close here.

++ Debate resolves but dissent is unending at times. The word "Comrade" as defined in the concise Oxford Dictionary means a "workmate, friend or companion".

++ The word and spirit need not be forgotten even by Judges and Adjudicating Bodies. We should continue the debate, dialogue, discussion and deliberation but differ rarely and in exceptional cases, with dignity.

A copy of the order was directed to be forwarded to the President of the CESTAT.

(See 2014-TIOL-623-HC-MUM-ST)