1. Heard both sides. The miscellaneous application has been filed under Rule 41 of the CESTAT (Procedure) Rules, 1982 seeking direction for implementing CEGAT's Order No. CI/3727/01/WZB/2001 dated 23.11.2001.
Both sides confirm that the said order dated 23.11.2001 has not yet been implemented.
2. It is the submission of the application that in pursuance of the Tribunal's Order dated 23.11.2001, the department has to release 800 tolas of gold to the appellants by implementing the said order. Through the miscellanous application, the appellants are seeking directions from the Tribunal for release of gold alongwith interest on prevailing market price of gold.3. I find that Rule 41 of the CEGAT (now CESTAT) (Procedure) Rules, 1982 reads as under : "The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice." Rule 41 is a part of the procedural rules framed by the Tribunal itself in exercise of the powers conferred by sub-section (6) of Section 129C of the Customs Act, 1962. The said sub-section (6) reads as under : - "Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings." This Tribunal was set up by exercising the power conferred by Article 323B of the Constitution as noted in para 26 of the Apex court judgment in the case of L. Chandra Kumar Vs. UOI, 2002-TAXINDIAONLINE-159-SC-CONSTITUTION, 1997 (92) ELT 318 (SC).
Article 323B(1) provides that the Parliament may, by law, provide for such a Tribunal to be set up. Article 323 (B) (3) provides that a law made under clause (1) may, inter alia,- i) Specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by such Tribunal, ii) contain such supplemental, incidental and consequential provisions as the Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and enforcement of the orders of, such Tribunal.
5. As such, the Constitution specifically authorized the Parliament to enact a law to set up a Tribunal and also to specify in the law, the power to punish for contempt and provisions for enforcement of its orders. In the case of CESTAT which has been set up under the Customs Act, 1962, there are no specific powers provided to punish for contempt or to enforce its orders. sub-section (7) of Section 129C no doubt gives certain powers to the Tribunal, as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely, - b) enforcing the attendance of any person and examining him on oath ; c) compelling the production of books of account and other documents; and It is clear from the above that such powers as have been given under the Customs Act, 1962 are adequate for deciding an appeal and passing the final order. But it is also obvious that these powers are not of such nature which can be used for enforcement of the Tribunal's final order after the same has been passed. The inevitable conclusion is that though the Constitution empowers the Parliament to vest a Tribunal by Law with the power to punish for contempt and to enforce its orders, the same has not been done in respect of CESTAT under the relevant law enacted by the Parliament. In the absence of such express legal powers given to CESTAT, the Tribunal cannot make rules on its own under sub-section (6) of Section 129C of the Customs Act, the scope of which is very limited and is also subject to the provisions of the said Act, to make any rules to assign itself either the power to punish for contempt or to enforce its own final orders. Nor the scope of rule 41 of the CESTAT (Procedure) Rules, 1982 made under the said sub-section (6) of Section 129C can be stretched to include power to punish for contempt or for enforcement when such powers which could have been given to CESTAT by the Parliament by law has actually not been given.
In view of the enabling provisions in the Constitution under Article 323 B and the Parliament's conscious omission to assign power to punish for contempt or to enforce its final orders (particularly when such powers have been given to other Tribunals like the CAT set up under Article 323A), this Tribunal cannot presume to have such powers by stretching the said Rule 41 of its own procedure Rules which has been framed by itself merely to regulate its own procedures in matters arising out of exercise of the powers assigned to it. In matters of punishment for contempt and enforcement of its orders, since the CESTAT has not been given any specific powers under the law, it can not obviously derive such powers from its own rules.
6. CESTAT is a Court and contempt of CESTAT can certainly be punished and its orders need to be enforced. In the case of ITAT Vs. Dr. V.K.Agarwal, Law Secretary, Government of India - 1998 SOL (Supreme Court Online) Case No. 141, the Apex Court in its order No. dated 17.11.1998 has held that the Income Tax Appellate Tribunal (ITAT) performs judicial function and is a Court subordinate to the High Court. The Apex Court has also held in the same case that under Article 129 of the Constitution, the Apex Court not only has the power to punish for contempt of itself but also for contempt of all Courts and Tribunals subordinate to it and thereafter, it proceeded to punish the Law Secretary who was found guilty of contempt of the ITAT. It is, therefore, not in dispute that contempt of the Tribunal and contumacious disregard to implement its orders can be punished.
However, since the law i.e. the Customs Act, 1962, under which CESTAT has been set up, has not provided for specific powers to CESTAT for punishment of its contempt and for enforcement of its orders despite enabling provisions of Article 323B of the Constitution, it can not assume to have such powers.
7. In the light of my findings as above, I am of the view that the miscellanous application filed by the appellants under Rule 41 of the CESTAT (procedure) rules, 1982 seeking direction for implementing its order dated 23.11.2001 is mis-conceived as the Tribunal has not been given any such powers under the law to enforce its orders. As such, the same is dismissed.