Dinkar Khindria & Anr vs Union Of India & Ors
2008 Latest Caselaw 1716 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 23.09.2008

+            CUS. A. C. 8-9/2006

DINKAR KHINDRIA & ANR                                      ... Appellant

                                  - versus -

UNION OF INDIA & ORS                                       ... Respondent

Advocates who appeared in this case:

For the Appellant : Mr S. C. Kathuria with Mr Nilesh Sawhney For the Appellant : Mr Mukesh Anand with Mr Shailesh Tiwari and Ms Zeba Tarannum Khan

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE RAJIV SHAKDHER

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J (ORAL)

1. This appeal is directed against the orders dated 25.07.2000

and 03.06.2005 passed by the Customs, Excise and Service Tax

Appellate Tribunal. The delay in filing this appeal has already been

condoned by virtue of the order dated 13.02.2007 by our predecessor

Bench.

2. This case has arisen in unusual circumstances and this would

be apparent from going through the orders passed by this Court on

04.12.2007 and 29.01.2008. In the order dated 04.12.2007 it is noted

that after the final order was passed by the Tribunal on 25.07.2000, a

rectification application had been filed by the appellant on 10.11.2002,

which was dismissed for non-prosecution on 22.03.2004. The order

dated 22.03.2004 noted that the application was listed for hearing on

13.02.2004 when the learned counsel appeared on behalf of the

appellants and the matter had been adjourned in his presence to the

adjourned date i.e., 22.03.2004.

3. The order dated 04.12.2007 passed by this Court further

notes that the appellants filed another application for rectification but

that application was neither signed nor was there an authorization and,

therefore, the same was dismissed on 19.12.2004. A third application

for rectification was filed, which was dismissed by the order dated

03.06.2005, which is also challenged in the present appeal.

4. More importantly, the order dated 04.12.2007 passed by this

Court records that on perusal of the final order dated 05.07.2000, it was

found that there was a handwritten order / sheet which was apparently

signed by the members of the Tribunal, a certified copy of which had

been placed on record by the learned counsel for the appellants. The

said order indicates that orders had been reserved but it is noted that it

also indicates that an order was intended to be passed and it was signed

on various dates such as 05.07.2000 and 25.07.2000. In view of the

discrepancies between the handwritten order/ sheet and the final order

dated 25.07.2000, this court wanted to peruse the original file of

C/54/93/NB of 1993 and for this purpose directed issuance of notice to

the Registrar of the Tribunal to produce the original file pertaining to

the said appeal filed by Dinesh Khindria decided by Sh. G. R. Sharma,

Member (Technical) and Sh. A. C. C. Unni, Member (Judicial). The

notice was returnable on 17.01.2008.

5. However, despite such notice, the Registrar of the Tribunal

was neither present nor was any nominee on his behalf present. The

records were also not made available to the Court. This Court took a

serious view of the matter and indicated that in case of non-compliance

of its orders, it would have no option but to take coercive steps. The

matter was renotified for 29.01.2008.

6. On 29.01.2008 the original file had been produced by the

Registrar (Mr S. Chandran) of the Tribunal, who was also present in

person.

7. After examining the record available in the original file and

particularly page 73 thereof this Court noted that the following

handwritten order had been passed:-

―Heard both sides. [Gold allowed to be redeemed on payment of a fine of Rs. In case gold is already sold and hence it cannot be so redeemed. As the gold is sold be allowed to be redeemed and the redemption fine is determined to be Rs 1.5 lakhs. As the gold is no longer available this amount of Rs 1.5 lakh should be paid to the appellant who has claimed the gold.]‖

This Court also noted that the above order had been signed on

05.07.2000 but the portion in parentheses was cut out and was changed

to:-

―Order reserved.‖

This Court further noted that when the order was eventually

pronounced on 25.07.2000 an entirely opposite conclusion was arrived

at and the Tribunal dismissed the appeal filed by the petitioner, even

though, in terms of the handwritten order it had been allowed on

05.07.2000. At that point of time the learned counsel for the appellants

had also informed this Court that as per his information the file was

missing from the concerned branch of the Tribunal for almost 1½ years

thereafter.

8. This Court, as indicated in the order dated 29.01.2008, took

the view that after an order had been written and signed, it could not

subsequently be changed and the decision reversed, whatever be the

circumstances and, particularly, without notice to any of the parties.

This Court was of the view that this amounted to tampering with the

judicial record. A serious note was taken by this Court and it was

observed that if such matters were allowed to go unchecked, orders

passed by the Tribunal would have no sanctity because the same could

be changed at will and different conclusions could be arrived at on

different dates in respect of the same case. Under the said

circumstances, this Court requested the President of the Tribunal to

conduct an enquiry into the matter and to indicate the detailed facts so

that this Court could take appropriate steps.

9. The President of the Tribunal has submitted a report dated

31.03.2008. The material portions of the report read as under:-

―4. It appears to me that after hearing the parties, the Members of the Bench tentatively decided to release the seized gold on payment of redemption fine or, at least, Shri G. R. Sharma decided. However, some difference of opinion apparently was there, or had arisen, which is evidence from the fact that the words ―gold allowed to be redeemed on payment of a fine of Rs.‖ Were cut and another order was written to the effect that as the gold is no longer available, the amount may be paid to the appellants, who were its claimants. It appears that the difference of opinion persisted with the result that, finally, order was reserved for consideration. It may be kept in mind that all the aforementioned orders were recorded by G. R. Sharma in his own hand. He put his initials in the margin of the order sheet which he had cut. It may also be mentioned that the two parts of the hand written order-- quoted hereinabove -- were scored out one after the other which is evidence from the fact that the scoring out of the former was horizontal while the latter part was scored out vertically.

5. I find that there is a practice in the Tribunal that short orders are sometimes recorded by hand, ordinarily by the senior Member presiding the Bench. In the instant case, the senior Member purported to record an order regarding redemption but there was an apparent difference of opinion and, finally, the other Member i.e Shri A. C. C. Unni, was requested to write the judgment. The order sheet of 05.07.2000, as recorded, was signed not only by Shri G. R. Sharma, but also by Shri A. C. C. Unni, on the same day i.e 05.07.2000, but there is nothing to indicate that the order was pronounced.

6. It appears to me that despite signing the order Shri A. C. Unni expressed his dissent resulting in scoring out of the entire order sheet, as recorded, and reserving of order. It is relevant that the appeal was finally dismissed by order which was written by Shri A. C. C. Unni. Apparently, Shri A. C. C. Unni was not in agreement with Shri G. R. Sharma directing redemption of the goods or payment of the amount of redemption fine of Rs 1.50 lakhs and, therefore, insisted on to remove the order. The only thing is that he also signed the order, as recorded, which part apparently is not understandable to me. It may not be out of place to mention that the dispute involved in the appeal appears to be contentious one. In the past also, there was difference of mind and as per opinion of the third Member, the matter was referred to Larger Bench. In my respectful opinion, in the facts and circumstances, spelt out above, not much should be read in the alleged alteration to suggest some bad motive or the like.

7. Be that as it may, both Shri G. R. Sharma and Shri A. C. C. Unni have demitted their office as members of the Tribunal long back and in my view, at this stage, the matter may not be pursued further.‖

10. The above extract of the report submitted by the President of

the Tribunal clearly indicates that the handwritten order passed on

05.07.2000 was indeed signed by both the members and that it was

only scored out subsequently. The report of the President of the

Tribunal also indicates that both the members of the Tribunal, who

were party to the said orders and cancellation of orders, have since

demitted office as members of the Tribunal.

11. It is obvious that the handwritten order dated 05.07.2000 had

been signed by both the members but they had subsequently scored out

the order and it is only thereafter that a fresh order was passed on

25.07.2000.

12. However, the counsel for the parties are agreed that in these

special circumstances since there is a great deal of confusion, it would

be appropriate if the impugned orders are set aside and the matter is

remanded to the Tribunal for a consideration afresh after hearing both

the parties. While we are passing a direction to this effect, we would

also like to make it known to the Tribunal that what has been done in

this particular case does not behove of judicial proceedings. Once an

order is passed and it is signed by the members, the same cannot be

altered unless law provides for a review of the same and that too only

after hearing the parties. We are not pursuing the matter in respect of

the particular members who were party to the said proceedings because

of the request made by the President of the Tribunal and particularly

because the said members have demitted office as members of the

Tribunal. However, the Tribunal should ensure that such unsavory

incidents should not occur in the course of their conduct of judicial

proceedings. It is hoped that the President of the Tribunal shall inform

the other members of the Tribunal about the passing of this order.

13. With the above observations we set aside the impugned

orders dated 25.07.2000 and 03.06.2005 and remit the matter to the

Tribunal for a consideration afresh. The Tribunal will also take note of

its decision in the case of Mohit Thakore v. Collector of Customs,

New Delhi: 1994 (72) E.L.T. 865 (T), which was in respect of a co-

passenger and who was involved with the present appellants in the

same case under similar circumstances.

14. The parties shall appear before the Tribunal for directions on

05.11.2008. The Tribunal shall expedite the hearing of the appeal and

shall dispose of the same within three months thereafter.

BADAR DURREZ AHMED, J

RAJIV SHAKDHER, J September 23, 2008 SR