2016 (8) TMI 1326 - AT - Customs

Rectification of mistake - Restoration of withdrawn appeal - export obligation discharge certificate - Held that - Rule 41 deals with the situation where Tribunal s order is to be given effect. But here is a case where no further effect of the Tribunal s order has risen to invoke Rule 41 of CESTAT (Procedure) Rules, 1982. Therefore, recalling the appeal dismissed as withdrawn earlier would be abuse of the process of law when the appellant has exercised its own choice to withdraw the appeal without leave being granted by the Tribunal for mention in future - ROM application dismissed.

Summary

Issues:
1. Appeal withdrawal without leave for future mention.
2. Appellant's contention on export obligation discharge certificate.
3. Tribunal's authority post-appeal disposal.

Analysis:
1. The appellant withdrew the appeal without seeking leave for future mention, leading to the dismissal of the appeal. The Tribunal noted that no such leave was granted at the time of withdrawal, and the appellant chose to withdraw the appeal independently without any provision for future action. This lack of leave prevented the Tribunal from considering restoration at a later stage if required.

2. The appellant claimed to have obtained an export obligation discharge certificate, indicating no further liability under the Customs Act, 1962. The appellant relied on legal precedents such as the decision of the Hon'ble Supreme Court in the case of Income Tax Officer v. M.K. Mohammed Kunhi and a Tribunal decision in the case of Padiyur Sarvodaya Sangh. However, the Tribunal found the current situation distinct from the cases cited and emphasized that the appellant's withdrawal of the appeal without leave hindered any subsequent restoration.

3. The Revenue contended that post-appeal disposal, the Tribunal no longer held authority to entertain the matter. The Tribunal examined the legal framework, highlighting the difference between the wider scope of Section 151 of the Civil Procedure Code and the appellate jurisdiction of the Tribunal, a statutory creation. The Tribunal clarified that the circumstances did not warrant invoking Rule 41 of CESTAT (Procedure) Rules, 1982, as there was no subsequent effect of the Tribunal's order necessitating such action. Consequently, the Tribunal dismissed the miscellaneous application seeking to recall the appeal, emphasizing the importance of adhering to due process and the appellant's initial decision to withdraw without leave for future mention.