2010 (8) TMI 266 - AT - Customs

Rectification of Mistake Recall of order non consideration of factual aspects pertaining to the other appellants - order of the Apex Court, there are observations to the effect that this Tribunal, in final order dated 19-1-2006, did not consider the appellant s case on merits - Commissioner s order, which did not make particular reference to the facts of the case of Sunitidevi Singhania Hospital and Medical Research Centre, could be considered to be manifestly erroneous in so far as this applicant is concerned Appeal allowed

Summary

Issues:
1. Rectification of mistake in Tribunal's final order dated 19-1-2006.
2. Consideration of factual aspects of the case of Sunitidevi Singhania Hospital & Medical Research Centre in the final order.
3. Praying for recall of the earlier final order.
4. Observations of the Apex Court on the Tribunal's order dated 19-1-2006.
5. Application for recall of the final order and direction for the appeal to be posted for final hearing.

Analysis:

Issue 1: Rectification of mistake in Tribunal's final order dated 19-1-2006
The application by M/s. Sunitidevi Singhania Hospital & Medical Research Centre highlighted "apparent mistakes" in the Tribunal's final order dated 19-1-2006. The appeal was filed against the Commissioner of Customs' decision demanding duty on medical equipment imported by the hospital. The Tribunal's order upheld the denial of benefit of Notification No. 64/88-Cus. to the hospital but reduced the fine and penalty imposed. A subsequent application for "rectification of mistake" was disposed of, sustaining the redemption fine and penalty. The party approached the Supreme Court, and the case was remanded to the Tribunal for fresh decision.

Issue 2: Consideration of factual aspects of the case in the final order
The Apex Court observed that the Tribunal's final order dated 19-1-2006 did not consider the factual aspects of the case of Sunitidevi Singhania Hospital & Medical Research Centre. The Court noted that the Tribunal determined the case of another appellant without considering the facts of the present applicant's case. The Apex Court directed that the application could be considered on merits without reference to a specific section of the Customs Act.

Issue 3: Praying for recall of the earlier final order
In the present proceedings, the counsel for the applicant prayed for the recall of the earlier final order concerning the applicant. The basis of this prayer was the alleged non-consideration of the facts of the case of Sunitidevi Singhania Hospital & Medical Research Centre in the Tribunal's final order dated 19-1-2006.

Issue 4: Observations of the Apex Court on the Tribunal's order
The Apex Court observed that the Tribunal did not consider the appellant's case on merits in the final order dated 19-1-2006. The Court noted that the Tribunal's decision was based on a question of law without evaluating its applicability to the facts of the appellants' case. The Apex Court directed a reconsideration of the application on merits.

Issue 5: Application for recall of the final order and direction for the appeal
After considering the observations of the Apex Court and the facts of the applicant's case against the Commissioner's order, the Tribunal found the final order to be manifestly erroneous concerning the applicant. The Tribunal recalled the final order in appeal No. C/448/02 and directed the appeal to be posted for final hearing, allowing the application to that effect.