CESTAT Cannot Review Interim (Stay) Order - President
THE President of CESTAT, Justice Goda Raghuram has issued a note for the benefit of the Members of the Tribunal.
The President observes that Section 35C of the Central Excise Act and Section 129B of the Customs Act provide for amending a final order of the Tribunal for rectifying a mistake apparent on record. The President observes that there is however no provision in the Acts authorising a review of an interlocutory order passed, in appeals preferred to this Tribunal.
He adds that it is a well settled position that Courts or Tribunals nave no inherent power of review and such power must be conferred by the relevant legislation as per some Supreme Court orders cited by him.
Therefore, he concludes that in the absence of legislative authority, conferring jurisdiction to review an interim order passed after notice to and hearing the respective parties, no application for review of such order, whether called an application for rectification, modification or a miscellaneous application, could be entertained, which involves reconsideration of the merits of an interlocutory order.
The president further notes that some High Courts have permitted application for reconsideration by this Tribunal, of an interlocutory order passed duly. But he asserts "In the light of the several binding pronouncements by the Supreme Court clearly excluding any inherent power to review a judicial or a quasi-judicial order, it would be impermissible for the Tribunal to entertain an application for such review."
The President wants the Registry to place this position before appropriate Benches for judicial consideration, while listing an application for rectification/modification/review of an interlocutory order, passed by the Tribunal.
A colleague asked whether the President could issue such a note. The president had been a seasoned judge of a large High Court and he certainly knows his law on his powers and duties. He has not directed or advised the Members to decide the cases in a particular manner - he has only brought a legal position to the notice of the Members - and it is for their judicial consideration and the Members are certainly not bound by the opinion of the President and they can take a different judicial opinion.
Incidentally, the Laws do not confer any power on the Tribunal to stay the demand confirmed by the lower authority. But it is assumed that the Tribunal has inherent powers to grant stay, what is wrong in vesting the Tribunal with the power to rectify a mistake in an interim order. When the mistake in a final order can be corrected, why the mistake in an interim order cannot be corrected.?
Maybe we need a change in Laws - the Acts should be amended to provide for review/rectification of interim orders also.
CESTAT Circular in F.No.01/04/Circular/CESTAT/2014, Dated: March 13, 2014