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TaxTMI 
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1989 (7) TMI 274
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....44 (hereinafter for short 'Act'). The same was heard on merits by the Special Bench of the Tribunal consisting of Shri S.D. Jha, Vice-President (Judicial) and S/Shri I.J. Rao and D.C. Mandal, both Technical Members on 19-4-1988. After hearing the appeal the Bench orally pronounced the Order allowing the appeal with the remark that "Order to follow". The said Order of the Bench dated 19-4-1988 reads as under - "Appeal allowed. Order to follow. Sd/- S.D. Jha V.P. (J) Sd/- I.J. Rao 19-4-1988 Sd/- D.C. Mandal" 3. It appears that after pronouncing the Order orally as above, the case was entrusted to Shri D.C. Mandal, Technical Member for writing the reasoned Order, but due to his serious illness Shri D.C. Mandal, learned Technical Member had to proceed on leave. Meanwhile the learned Vice-President (Judicial) Shri S.D. Jha, as he then was, opted to go back to his parent office (High Court of Madhya Pradesh) and was scheduled to relinquish his charge on 3-5-1988. Under these circumstances Shri D.C. Mandal, learned Technical Member sent back the case to Shri S.D. Jha opining for re-hearing of the case with the following note - "Before I could write the Order, I fell seriously ill....
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....d would not be valid. 8. Since an interesting question of law of frequent occurrence has arisen it has become necessary for us to investigate into the fundamentals as to what is an 'Order' with in the meaning of sub-section (1) of Section 35-C of the Act. 9. Central Excises and Salt Act does not define "Order" occurring in Section 35-C of the Act like the Code of Civil Procedure, wherein the words 'judgment', 'Order' and 'decree' are defined. 10. Section 2(9) of the Code of Civil Procedure defines 'Judgment' as meaning the statement given by the Judge of the grounds of a decree or order. Section 2(14) says that 'order' means the formal expression of any decision of a Civil Court which is not a decree. Section 2(2) of the Code says that 'decree' means the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. 11. We have no definition of the term "Order" in the Central Excises and Salt Act, 1944 and also in 'The Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982' frame....
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....ade under the Act. 14. After stating so we now proceed to interpret the real meaning and purport of an "Order" which possibly could be an Order which is required to be passed by this Tribunal in terms of Section 35-C of the Act and for that purpose we have to look into the Scheme and the Provisions of the Act since we have no definition of the term 'Order' in the Act as aforesaid. 15. Chapter VI of the Act provides for "Adjudication, Confiscation and Penalties". Chapter VI-A makes provisions for "Appeals". Section 35-B which appears in Chapter VI-A of the Act provides for the filing of appeal to this Tribunal against the decision or orders mentioned therein and also for cross-objections. Sub-section (1) of Section 35-C of the Act provides that the Appellate Tribunal may, after giving to the parties to the appeal an opportunity of being heard, pass such Orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may remand the case as it may think fit, as the case may be, after taking additional evidence, if necessary. Sub-section (4) of the Section provides that "save as provided in Section 35-G or Section 35-L Orders passed by th....
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.... final when, so far as the Court rendering it, is concerned, it is unalterable except by resort to such provisions as to permit its reversal, modification, or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties, if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application, as is permitted under the law. From the above it is clear that the finality is attached to the Order passed by the Tribunal except to the extent provided for in Section 35-G or Section 35-M and it also operates as res judicata between the parties. 17. Now look from another angle. As stated above Section 35-G of the Act confers a right upon the parties and provides that either party may move an application for reference requiring the Tribunal to refer to the High Court any question of law (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for the purposes of assessment) arising out of the Order passed by the Tribunal under Section 35-C. It further gives a right to the party concerned to app....
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.... the case of Mahabir Prasad v. State of U.P., AIR 1970 SC 1302. 19. Yet in the case of Vidyacharan v. Khupchand, AIR 1964 SC 1099 the Hon'ble Supreme Court had an occasion to consider, not in a position in pari-materia but a similar provision, the Representation of the People Act, 1951, and Hon'ble Subba Rao, J., after noticing Section 98 of the Representation of the People Act, which provides that at the conclusion of the trial of an election petition the Tribunal shall make an Order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected, observed as follows - "There is no provision in the Act defining how the decision should be given. It could not have been the intention of the Legislature that the Tribunal need not give the statement of reasons for its decision……..it is the duty of the Election Tribunal to give a statement of reasons for its decision." (Emphasis supplied) 20. More recently in the case of Commissioner of Income Tax, Bombay v. Walcha....
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....se of the powers conferred by sub-section (1) of Section 35-D of the Central Excises and Salt Act, 1944. The said rule provides that "every order of the Tribunal shall be in writing and shall be signed and dated by the Members constituting the Bench concerned". In the present case after the hearing was concluded the judgment was not dictated in the Open court and what was pronounced was "Appeal allowed. Order to follow". In other words the Order embodying the reasons for allowing the appeal was never dictated or pronounced in the Open Court. It may be stated that it is open to the Tribunal to issue two documents - one embodying the reasons for the decision and the other, the formal expression of its decision; the former will be its judgment and the latter, its order. It may issue both in the same document in which case the judgment as well as the order is embodied in the same document. If so it is manifest that an Order made under sub-section (1) of Section 35-C of the Act if it contains also the reasons for it, is a composite document satisfying the definition of a judgment as well as that of an order. See Vidyacharan v. Khupchand, supra wherein their Lordships of the Hon'ble Supr....
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.... and the sentence of death was confirmed. The question before the Court was whether this "judgment" could be validly delivered after the death of one of the two Judges who heard the appeal. Answering this question it was held by the Hon'ble Supreme Court that the judgment which Kidwai J. purported to deliver on 5-1-1953 was not a valid judgment because the other Member of the Bench died before it could be delivered. Hence the appeal was allowed with the direction to the High Court for re-hearing and delivery of a proper judgment. This is not the case here. In the case of Vinod Kumar Singh v. Banaras Hindu University, supra, the Writ Petition was taken up for hearing on 28-7-1986 and when hearing was concluded, judgment was dictated in the Open Court allowing the Writ Petition and direction to the University to admit the Petitioner was ordered. It appears that subsequently on February 5, 1987, the same learned Judges who had allowed the writ petition released the said case and ordered for listing the case for hearing afresh passing the following directions - "……… We release this case but we direct that this case be placed before the Hon'ble Chief Justice for ge....