There is a widespread and long standing debate with respect to powers a tribunal can exercise. There is a controversy whether the Tribunal can award cost? Or can it award penal and exemplary cost? Can it recall its order? Can it review its order? Whether a tribunal has inherent powers of the Court? What are the incidental and ancillary powers of the Tribunal? How does the Tribunal differ from a court? How it can enforce its orders? And the list goes on. To make the matter worse there are sufficient numbers of contradictory judgments in both side of the argument. This paper is an humble attempt to examine this controversy based on the fundamental principles and on basic premises of law.
These debates basically revolve around few basis presumptions. The fundamental presumption is that the Tribunal is not a Court. Hence the powers of the Courts are not available to the Tribunal. Since it is not a Court, it has no inherent powers. The Tribunal is a mere fact finding body, it cannot order anything apart from what has been stated in the statute. It cannot order anything in the name of doing complete justice. The Tribunal cannot enforce its orders like a Court, which can enforce its decrees. Tribunal is a creature of a statute and hence it cannot go beyond the words of the statute.
These are very valid questions. And these questions must have been settled by authorative pronouncements. Unfortunately these issues have not been examined by the higher Judiciary in a holistic manner. Such uncertainty results in contradictory decisions regularly, which undermines the very basis of rule of law. Such contradictions breed contempt in the mind of the citizens against the law. It clearly shows that injustice has been done to at least some persons. The law does not believe a witness, who speaks contradictory things in the witness box, how can it expects the citizens to believe the law enforcing mechanism which speaks contradictory things on issues as basic as powers and jurisdictions of courts and tribunals? We need to seriously ponder over the issue. Moreover the legislatures, which amend the Customs and Central Excise law regularly during budget has never felt the need to clarify the issue. After all, budget is all about money; justice can always wait!
Tribunal and Court:
It is said that Tribunal is not a Court. Let us try to define the term Court. This term has not been defined in any of the statutes, hence we have to rely upon the definition of the term given by the judicial determinations. On the basis of judicial ruling in case of S D Ghatage v. State of Maharashtra [AIR 1977 Bom 384], these are the basic characteristics of a Court,
(a). It is an adjudicating body.
(b). It performs a judicial function of rendering definite judgments having finality.
(c). The judgment binds the parties litigating before it.
(d). They derive their power from the state.
On the basis of these characteristics the tribunal is a court. Why only the tribunal, on the basis of these characteristics even Commissioner (Appeals) or an adjudicating Assistant Commissioner is a Court. And the author is of the view that this is the true interpretation of the term “court”. Thus the word court includes an Income Tax Collector when engaged in hearing objections to an assessment under Income Tax Act [3 SLR 66]. An Election Commissioner is a Court as held in Dr. Shyamakant Verma v. Harishankar Prasad [AIR 1954 Pat. 65]. The Commissioner under Workmen’s Compensation Act is a Court [AIR 1960 Bom 387]. Labour courts and Industrial Tribunals are Courts [AIR 1986 Guj. 209]. A Sales Tax officer is a court [State v. Kantilal Mangallal]. A tehsiladar is a Court [AIR 1966 All. 124]. The Supreme Court held, in Brajnandan Sinha v. Joty Narain [AIR 1956 SC 66],
“Since Officers on special duty perform judicial functions and have been empowered to render definite decisions-decisions which have finality and authoritativeness so as to bind the parties and they derive their authority to dispose off the disputes judicially from the state directly from the statute, such officers are courts.”
This author is aware of another set of many judgments, which decides in a contradictory manner about the same authorities. Therefore this author is of the view that the issue needs to be decided authoritatively by the Supreme Court. However, one thing is clear-the term court cannot be decided on the basis of nomenclature of the authorities, it has to be decided on the basis of substantial functions performed by the authority. When we examine the Tribunal on the basis of functions performed by it, undoubtably it is a court.
Powers of Tribunal:
The often-repeated quotation is that “the tribunal is a creature of statute and hence it cannot go beyond the statute.” This quotation is very true in the sense that every authority is a creature of statute and cannot go beyond statutes. When we see that even the Constitution is a statute, even high Constitutional authorities are bound by the statutory provisions of the Constitution. It is merely a fundamental feature of the “Rule of Law”. Why only that, even the high Constitutional authorities are bound by ordinary statutory provisions- isn’t the President of India is bound by the provisions of the Customs Act, which has created the Tribunal. Thus the quotation is merely an universal truth and cannot be used to decide the power of the tribunal. Hence this quotation cannot be a reason to give or deny any power to the Tribunal.
Nevertheless, the powers of the Tribunal have to be seen in the Act only, which has created it in the very first place. It is the act only, which confers powers on the tribunal. However we must keep in mind that the tribunal is a judicial body and hence provisions, giving power to the Tribunal, are required to be interpreted in the same manner as any other Act giving power to a judicial body is interpreted.
When we see the wordings of the Section 129B of the Customs Act, 1962 it says that “the Tribunal can pass such order as it deems fit, confirming, modifying or annulling the decision or order appealed against”. Further the Section makes provision for remand of order/decision too. On a narrow interpretation, it appears that the Tribunal is empowered to order only these things, which are specifically mentioned. Further Section 129B(7) says that the Tribunal shall have power of a Civil Court in respect of certain mentioned matter. Interpreting strictly, it means that the Tribunal can pass only such order confirming, modifying, annulling or remanding the order appealed against and the tribunal has only such power with respect of things mentioned in the Section 129B(7). Negatively we can say that the Tribunal cannot pass an order not mentioned in the Section and it doesn’t have power vested in a court with respect of things not mentioned in sub-section (7).
If we interpret the Section liberally, as any statute conferring jurisdiction is interpreted, it is clear that mere mention of certain items does not exclude the power of the Tribunal from other areas. Thus mere mention of four items in the sub-section (7) cannot imply that the Tribunal has no power with respect to any fifth item. Such questions have been raised a number of times before the higher judiciary and the Courts have always answered affirmatively.
The Supreme Court held in Bhopal Sugar v. ITO [AIR 1961 SC 182] that the decisions of Tribunal are binding on the lower authorities. It may be mentioned that the Act is silent on the binding effect of the orders of the Tribunal. The Act is silent on the issue of judicial descipline but the Supreme Court has affirmed that in case of UOI v. Kamalakshi Finance Corporation [1991 (55) ELT 433 (SC)]. Although the Tribunal is said to be a fact finding authority, it was held that the decision of the Tribunal will be binding on question of law also and also in subsequent period as held in Indo National Ltd. v. CCT [(2004) 136 STC 586 (AP HC FB)]. Although the law is silent as to what happens when there is inconsistency between a Tribunal’s order and Board’s order, Bombay high Court held in Century Rayon v. UOI [2002 (142) ELT 319 (Bom HC DB)] that the order od CESTAT will prevail.
Tribunal can recall an order passed ex-parte as held in JK Synthetics v. CCE [1996 (86) ELT 472 (SC)]. It may be mentioned that the act is silent on power to recall order passed ex-parte. Tribunals are empowered to impose adjournment costs as held in Rahul Enterprises v. CST [(1999) 115 STC 282 (Del HC DB)]. Quasi-judicial authorities have inherent power to dismiss a case on the ground of abuse of process of law as held in New India Insurance Co. v. K Srinivasan [2000 (2) SCALE 131]. Tribunals are empowered to pass interim orders to secure the ends of justice as held in CC v. Madras Electro Casting [1994 (71) ELT 646 (Mad HC DB)]. Supreme Court has unequivocally held that the Tribunals have power to execute their own orders in the case of State of Karnataka v. Vishwabharati [2003 SCW 558]. The Court held the same view in Savitri v. Govind Singh [AIR 1986 SC 984].
It may be mentioned that on these points the Act is silent and inspite of that the Courts have held that the tribunal is empowered to do that. In Grindlay’s Bank v. Central Govt. Indistrial Tribunal [AIR 1981 SC 606], the Supreme Court held that,
“ A Tribunal should be construed to be endowed with such ancillary and incidental powers as are necessary to discharge its function effectively to do justice between the parties, unless there is any indication in the statute to the contrary.” The Supreme Court held in UOI v. Paras Laminates [1990 (49) ELT 322 (SC)],
“There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in Maxwell on Interpretation of Statutes, (eleventh edition) “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.”
It is clear from these binding judgments that the Tribunal can exercise all powers necessary to do justice except those powers prohibited in the statute. Thus a tribunal cannot have a power against the express provisions of the statute as held in CIT v. Anjum M H Ghaswala [2001 AIR SC 4318].
Tribunal has a power to do Justice:
The above quoted judgments clearly show one thing- the Tribunal has power to do justice. Power to do justice is a plenary power and any authority which has power to do justice must have all powers necessary to do justice. If it is said that the Tribunal has no power to justice, i.e. the only power it has to either confirm or modify or annul the order appealed against, then the jurisdiction of civil court is open in the matters of Customs and Central Excise as a forum of justice cannot be denied to the citizens. Either the Tribunal has to do justice or people can approach courts for justice and judicial determination of the issues related to these fields.
Let us see this question- can Tribunal award cost? The answer is unequivocal yes. Or we have to say that the Tribunal has no power to award cost and hence the litigant should fight their cases in Tribunal but approach the Civil Courts for cost proceeding. This interpretation is leading to menifest absurdity and cannot be accepted as a judicial interpretation.
Once it is accepted that the Tribunal has power to do justice, then it has all powers to do justice, which is not against the express provisions of the statute. In R K Jain v. UOI [1993 (65) ELT 305 (SC)], the court has examined the issue in such details as to ensuring people faith the Tribunal’s adjudication, its independence etc.
It may be seen that as per Section 129B(6) of the Act, the Tribunal has been given power to regulate its own procedure, of course subjects to the provisions of the Act. This is a very broad power. It imply that in matters where the Act is silent, the Tribunal shall have powers to decide its own procedure. Thus, it is the tribunal which has to decide whether it has power to award cost or not, or how can it enforce its orders. The tribunal has framed Rules under this Section, but those Rules too leave many questions unanswered. A clarification on the issue is long overdue.
Written by:- Advocate Rajesh Kumar. The author can be contacted on The author can be contacted on firstname.lastname@example.org , Web: www.rajeshkumar.co.in