' The appeal filed by the respondent Messrs World Traders was heard by a Division Bench of Customs Excise and Sales Tax Appellate Tribunal comprising Member (Technical) and the Chairman/Member (Judicial). The learned Chairman disagreed with the proposed order recorded by Member (Technical). Thereupon the learned Chairman framed following question of reference to a third Member (Technical) based at Karachi.
"Whether in the circumstances of the case the goods in question are to be out rightly confiscated or the same are to be released to the appellants on the payment of customs duty and taxes."
2. The third Member (Technical) heard the case and agreed with the order proposed by the learned Chairman. On this the Chairman recorded "final order of the Tribunal" accepting the appeal in terms of the majority, opinion and modified the impugned order: ''Having done so he sent the order to the fore Member (Technical) to "see before the majority opinion takes effect as final judgment of the Tribunal which shall take such effect on his subscribing thereto." On the receipt of the judgment the learned Member (Technical) again contributed to the ' order by writing a number of pages and then "marked" the order back to the Chairman. For the second time the Chairman again wrote the following order.
"In view of certain observations of the Lahore High Court in C.A. No,377 of 2001, I had vide my note, dated 29-4-2002 (at paras. 15 and 16 ante), remitted this file to the learned Member (Technical) of Lahore Bench-I headed by me, in order to enable him to see the majority view and to subscribe thereto for making it the final judgment of the Tribunal. The learned Member (Technical) in the preceding note, instead of accepting the majority view, has subjected it, especially the opinion of the referee Member, to adverse criticism and to reiterate the contents of his dissenting note at paras. 1 and 6 ante. Anyhow, despite his disagreement, the majority opinion consisting of my views as Chairman/Member (Judicial) at paras.7 to 10 ante coupled with the views of learned referee Member at para.14 ante will prevail and constitute the final judgment of the Tribunal. As a result, the appeal is accepted, the impugned order is set aside and the goods in question are directed to be released by the Customs Authorities to the appellants herein on the payment of customs duty and taxes leviable thereon as prime quality goods."
3. Learned counsel for the Revenue has argued the matter on merits for admission of the appeal.
However, we will set aside the impugned order of the Tribunal on the short ground that, as recorded, it is not a legal order to be lifted to this Court as a subject-matter of appeal under section 196 of the Customs Act.
1969.
4. It appears that the Chairman and the Members Customs Excise and Sales Tax Appellate Tribunal have not understood the import of our order recorded in C.A. No,377 of 2001, re. Deputy Collector Sales Tax v. The Customs Excise and Sales Tax Appellate Tribunal (duly referred to in the impugned order as reproduced above). There appears to be something seriously wrong with the working of the Tribunal, at least on the procedural side. Despite our findings recorded in the aforesaid order learned Chairman framed the point of difference at his own and referred the matter to a third Member. As per our findings recorded in that judgment the points on which the learned Members of the Bench differed are required to be framed by agreement and then signed by both of them.
Also after the findings recorded by the third Member (Technical) agreeing with the learned Chairman he proceeded to record "final order of the Tribunal" without any such authority under the law. It was done despite the fact that in the said judgment we had expressly disapproved that practice of recording of final order of the Tribunal by the Chairman individually. The third illegality was committed when he referred the matter again to first Member (Technical) who comprised the Bench with him and had first heard the case. The Member (Technical) without any legal authority under the sky again contributed a number of pages to the order which could by no means be taken as part of a judicial order recorded on an appeal under section 194-B of the Customs Act.
5. The next illegality was again committed by the learned Chairman. Although he referred to our aforesaid judgment but acted exactly against the ratio settled in that case. The learned Chairman, for the second time, proceeded to record "final order of the Tribunal" individually which was not in accordance with law. All this can at best be described as unfortunate.
6. For the various reasons recorded by us in the aforesaid order re. Deputy Collector Sales Tax v. The Customs Excise and Sales 'Tax Appellate Tribunal (supra) we are constrained to set aside the impugned order of the Tribunal at pre-admission stage for the following reasons:
(i) The framing of points of difference individually by the Chairman was not in accordance with law.
The Member (Technical) who-comprised of the Bench hearing the case was required to agree and sign that question as a token thereof.
(ii) The recording of final order of the Tribunal by the Chairman individually was again without any lawful authority. The order of the Tribunal ought to be signed by all the three (or more) members who had heard the case. In this case the order of Bench had to be signed by all the benchers i,e, by both the members of the original Bench as well as the referee member.
(iii) Thirdly the sending of judgment to first Member (Technical) who comprised the Bench with the Chairman was totally against law. The order of the Tribunal was circulated as a secretarial file for contribution. This kind of approach or adoption of procedure is totally unknown in any judicial system where the Bench comprises of more than one members.
(iv) The marking of the order of the Tribunal by Member (Technical) again to Chairman was equally illegal and improper.
(v) The recording of final order of the Tribunal or its reiteration by the learned Chairman was not only against law but also the findings recorded by us in the aforesaid judgment as referred to by the Chairman himself.
7. That being so, we will set aside the .Impugned order of the Tribunal. The appeal shall be ,deemed pending before it. The differing members comprising the original Division Bench `will frame points of difference by agreement amongst them and then sign the same. Thereupon the matter shall he referred by the Chairman to the third referee memberOnce the third member has expressed the opinion all three members will sign the final order of the Tribunal whatever it may be.
8.A copy of this order shall be sent to the Secretary Law Justice and Parliamentary Affairs for its circulation to the Members of the. Tribunal along with the said order of this Court recorded in C.A.
377 of -2001, re. Deputy Collector Sales Tax v. The Customs Excise and Sales Tax Appellate Tribunal etc. For strict compliance of the procedure detailed in these orders.
9.Remanded.