Appeal to Appellate Tribunal – Pronouncement of the order – Gist of decision should be pronounced: Appeal to High Court – NTT – The High Court has no power to entertain an appeal, even though notification not yet issued by Govt. to set up NTT. (Customs Act 1962 S.130)

The appeal of the first respondent, a private company was posted for hearing before the Appellate Tribunal on 04-06-2009 and after hearing the detailed arguments from both sides, the Appellate Tribunal pronounced the order in the open Court allowing the appeal and the gist of the said pronouncement was recorded and signed by the Members on 04-06-2009 but the matter was entrusted to the Member (Technical) for drafting a detailed order giving the reasons. Subsequently, vide internal note dated 22-06-2009, the matter was posted for re-hearing on 30-06-2009. As against the same, the first respondent Company filed the Writ Petition seeking a direction to the Appellate Tribunal to pass the detailed order in line with the pronouncement made in the open Court and gist of decision recorded and signed on 04-06-2009.

The learned single Judge, on consideration of the submissions made by the learned counsel for the parties and the materials placed on record, allowed the Writ Petition directing the Appellate Tribunal to pass a detailed order in the appeal filed by the first respondent in consonance with the gist of the decision pronounced, recorded, signed and dated in open Court on 04-06-2009 within 15 days from the date of receipt of the order. Feeling aggrieved, the Department preferred a Writ Appeal.

The main contention of the learned counsel representing the Department was that the Tribunal immediately after hearing the appeal on 04-06- 2009 observed that “appeal allowed” without recording the gist of the order, and according to him, it is only the formal expression of the Tribunal to allow the appeal in the open Court without dictating any reasoned order and such an oral order announced in open Court, but not followed by a detailed written order giving reasons, is not a valid order in the eyes of the law. He further submitted that the note dated 22-06-2009 given by the Technical Member for re-hearing of the appeal was accepted by the Vice President (Judicial Member) and, therefore, prayed for interference of this Court and also sought for directions to the Tribunal to rehear the appeal as the gist of the order was not passed by it on 04-06-2009.

The Hon’ble Court observed that though the order was pronounced in the open Court on 04-06-2009 as “Appeal allowed” and last hearing date was recorded as 04-06-2009, an endorsement has been made by the Vice-President to the Member (Technical) to the effect “for orders please” from which it is clear that the matter was entrusted to the Member (Technical) for drafting a detailed order. Therefore, there cannot be any dispute that 04-06-2009 is the last date of hearing.

The Tribunal simply held “appeal allowed” without recording even the gist of the decision and, therefore, the same cannot be termed as a decision or order or judgment of the Tribunal.

The Hon’ble Court further observed that the circumstances leading to the filing of the appeal were not as per the provisions of the Act or Rules. The other issue before the Court was whether the High Court had the power to entertain an appeal against the order of the Appellate Tribunal.

The unamended section 130 of the Customs Act speaks about appeal to High Court. It enables the aggrieved person to file an appeal to the High Court against the order passed by the Appellate Tribunal on or after the 1st day of July, 2003. But it is pertinent to note that by virtue of enactment of the National Tax Tribunal Act, 2005 (49 of 2005), several provisions of the Act were omitted including section 130. This section was omitted by section 30 and schedule, part VI with effect from 28-12-2005. Therefore, from the date of omission of Section 130, the jurisdiction of the High Court is excluded.

Though the learned counsel for the first respondent tried to convince the Bench that notification is yet to be issued, the Act is very clear that the jurisdiction of the High Court was excluded from 28-12-2005.

There is no dispute that the High Courts in India have inherent and plenary powers, and as a court of record the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. However, the said principle has to be decided with the specific provisions in the enactment and in the light of the scheme of the Act, particularly in this case, in view of enactment of Act 49 of 2005 by virtue of which the jurisdiction of the High Court u/s. 130 of the Act has been ousted, it would not be possible to hold that in spite of the abovementioned statutory provisions, the High Court is free to entertain appeal against the order passed by the Appellate Tribunal.

The Hon’ble Court held that the High Court had no power to entertain an appeal filed against the order of the Tribunal and if the parties were aggrieved, they should have approached the Hon’ble Supreme Court by way of appeal u/s. 130-E of the Customs Act instead of resorting to invoke Article 226 of the Constitution of India when the jurisdiction of this Court has been ousted by Act 49 of 2005 from 28-12-2005.

The Division Bench thus held that the learned single Judge ought not to have entertained the Writ Petition.

The Writ Appeal was allowed.