TaxTMI 
TaxTMI 
2018 (9) TMI 737
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....rs, where a condonation of delay application filed by a widow was rejected. It was asserted that the Hon'ble President started dictating the order without giving full opportunity to the advocate to argue the legal point in the matter. In the said matter he argued that the order that was dictated in the court was of about 4 to 5 paragraphs and the demand of duty was upheld, however, the penalty was set aside. He pointed out that the upon pronouncement of this order the appellant's advocate argued that since penalty was set aside on account of bonafide of appellant, the demand for larger period of limitation was also required to be set aside as the condition invoking larger period of limitation and for imposition of penalty under section 11AC were similar. However, the said contention was not considered by the bench on the ground that the same was not argued by the advocate. At this point the advocate argued that no time was given to him to argue the mater fully and while the facts of the case were being explained, the Hon'ble President started dictating the order. He pointed out that the President refused to consider the submission and directed the stenographer to delete....
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.... observation in para 18 of the final order are incorrect. He further pointed out that the content of para 19 of the final order to the effect that the appellant's advocate had given any threat of boycott and called other counsel not to appear than bench are incorrect. Ld. Counsel pointed out that the appellant's advocate was asked to leave the court room and therefore he left the court with his Junior Colleagues, and several other advocates and consultant also left the court room immediately thereafter on their own, and no call for any boycott was given by the appellant's advocate as recorded in para 19 of the final order. 2.3. He further pointed out that no explosive reaction was demonstrated by appellant's advocate nor he resorted to rabble rousing. On the contrary, he made request on behalf of the advocate and consultant for proper opportunity of being heard and adequate time for making submission. 2.4. Ld. Counsel, pointed out that the applicant himself was not satisfied with the hearing granted to his advocate, as no time for making any submission on merit was allowed and the final order was dictated by Hon'ble President even when facts of the case were b....
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.... made unless it is absolutely necessary. He also relied on the decision of Hon'ble Apex Court in case ROM Devendar (2001) 10 SCC 195 to assert that there should be proper amity between the Bar and Bench. In the aforesaid circumstances Ld. Counsel sought to recall of the said order. 3. Ld. AR relied on the impugned order. 4. We have gone through the arguments made and the records perused before us, we have also examined the relevant file on record. The application seeks recall of the order passed by a coordinate bench. 4.1 Under the Central Excise Act, the tribunal does not have any power to review its own order. However, in terms of section 35C sub section 2, the tribunal can entertain an application for rectification of mistake apparent from the record. Section 35C sub-section 2 reads as follows: "The Appellate Tribunal may, at any time within [six months] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the [Principal Commissioner of Central Excise or Commissioner of Central Excise] or the other party to the ap....
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.... note sheet of the file on 23.04.2018. There are two draft orders and one final order available in the file. The draft orders contain corrections and insertions. The final order on the merit regarding the dismissal of appeal is common in all the drafts as well as the final orders. The first draft consists of 14 paragraphs and by insertion two paragraphs have been added and other corrections of the nature of grammatical/syntax have been done. The two paragraphs added as para 11 and 12. In tribunal there is practice of using the backside paper used for earlier draft. This is done to save paper. One draft in the file is on the backside of the earlier draft in a difference case. The other draft is partly on fresh paper. It appears from the drafts that there were more intermediate drafts which are however not available on file. Now we examine if the nature of changes made in the decision on merits. The drafts shows there are a large number of corrections of the grammatical/syntax nature. Apart from that para 11 and 12 have been added. Para 11 records the arguments made by the Ld. Counsel for appellants and Para 12 records the arguments made by the Ld. Departmental representatives. The ....
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....the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the "judgment". Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus paniteniea, and indeed last minute alterations sometimes do occur. Therefore, however, much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the court. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the court and be in a p....
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....n our opinion, Jackson J. expressed the law aright in these words:- "I have however always understood that it was necessary in strict practice that judgments should be delivered and pronounced in open court. Clearly, we are met today for the first and only time to give judgment in these appeals; and it appears to me, beyond question, that Judges who have died or have retired from the court cannot join in the (1) 9 W.R.I. (F.B.) judgment which is to be delivered today, and express their dissent from it." (p. 5). The Hon'ble Apex Court points out that the 'judgment within the meaning of these sections is the final decision of the court intimated to the parties'. Hon'ble Apex Court observes: The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the "judgment". Hon'ble Apex Court also relied on the decision of full bench of Calcutta High Court wherein it endorses the following view: Peacock C.J. pointed out at page 30: "The mere arguments and expressions of opinion of individual Judges, who compose a court, are not judgments. A judgment in the eye ....
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....is only after the judgment is both pronounced and signed that alterations or additions are not permissible, except under the provisions of Section 152 or Section 114 of the CPC or, in very exceptional, cases, under Section 151 of the CPC. 7. But, while the Court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. When a judgment is pronounced in open court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow." It is apparent that in the instant case final decision pronounced in the court has not been altered. What has happened is that the reasoning which was given by dictation in brief in the courts, has been elaborated in the written order in so far as merits are concerned. We find that such changes are acceptable in terms of the decision of Hon'ble Apex Court in the case of Surendra Singh and Others (supra). Hon'ble Apex Court clarifies that judgment, the final decision of the court intimated to parties in open court cannot be altered. However, it recognizes that power of court to draft the order in the appropria....
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....ls were dismissed and the said decision of dismissal was pronounced in the open court. Thus in effect the observation that operative portion i.e, paragraph 15 was pronounced in the open court is not incorrect. However, the entire order upto paragraph 15 was now dictated in the open court. In that respect, there is a mistake in the order. The word 'upto' needs to be replaced by the word 'in'. In terms of Rule 26 where the gist of the decision is pronounced without the detailed order, the last paragraph shall specify the date on which the gist of decision was pronounced. In the instant case, the gist of the decision in the instant case was pronounced on 23.04.2018 and thus there is no error in the impugned order in that respect. Rule 26 also prescribes that date of final order shall be the date on which the members of the bench signed the order applied to the situation where the gist of decision is not pronounced in the court. The said clause does not apply to the instant case where the gist of decision was pronounced in the open court. 4.8 Next issue relates to the claim that the appellant was not heard or given time to put up his case. The events of that day surely led to ....
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....ily and thus without doubt, the events were extraordinary in nature. There was a resolution by the Ahmedabad CESTAT Advocate Bar association to boycott the division bench functioning at that time at Ahmedabad and the said resolution was signed by 16 consultants/advocates apart from the President, Vice-President and Shri Paresh M. Dave, the Counsel for the appellant. The resolution read as under: "RESOLUTION TO BOYCOTT THE DIVISION BENCH CURRENTLY FUNCTIONING AT AHMEDABAD FROM 23/04/2018 TO 27/04/2018 Ahmedabad CESTAT Bar Association (ACBA) has resolved to boycott the Division Bench sitting at CESTAT-Ahmedabad from 23.04.2018 to 27.04.2018 in view of unsatisfactory and non-judicial approach of the Division Bench, and also improper behavior of the Bench in hearing and disposing of cases without proper hearing, and without even allowing the Parties (Both Appellants and Respondents) to make submissions. The Asst. Registrar is requested to bring the above resolution to the notice of the Division Bench, and also to allow new dates for all cases where the Bar Members do not appear because of the above decision of the bar." While the order records that the appellant's advocate stag....
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....an Patnaik v. Sashibhushan Kar]" 6.2 The decision of Hon'ble apex court in the case of Arun Devendra Oza v/s State of Gujarat & others 2001 (10) SCC 195. In para 4 of the said order following has been observed: "As a matter of fact, excepting the introductory paragraph, the entire four-page judgment contains disparaging remarks about the advocate concerned. We have had the occasion to look at a photostat copy of the original petition which is said to have been underlined by the learned Single Judge himself. It is true that there are certain typographical errors but the same are not such as to warrant remarks from the court about the efficiency or lack of knowledge of English literature (sic language) and that of law so far as the advocate is concerned. It is rather unfortunate that what is noticed above has not been kept in view. We would like to highlight that there should be a proper amity between the Bench and the Bar rather than any element of arrogance or superiority on one side. Proper coherence will bring the best out of the judiciary and make the justice delivery system of the country more effective. We are anguished at the writings of the learned Single Judge and we ....