2013 (11) TMI 90 - AT - Customs

Rectification of mistake - Date of communication of the order-in-original - Held that - If there was a presumption under Section 153 of the Act against the appellant, an effective opportunity of rebuttal was given to them and we satisfied ourselves that, instead of rebuttal, there was a consensus between the appellant and the department regarding the date of communication of the order-in-original to the appellant. Proceeding on this basis, this bench upheld the impugned order and dismissed the assessee s appeal. No mistake whatsoever, let alone an apparent mistake, is found in the final order passed by this bench. Appellant has made an attempt to add facts and materials to their case through the ROM application and the documents filed therewith. Such facts and materials can hardly constitute the record of the case for the purpose of subsection 2 of section 129B of the Act. We have come across additional evidence in the form of two affidavits but such additional evidence cannot be taken into account under subsection 2 of Section 129B ibid. In answer to a query from the bench, the learned counsel for the appellant has failed to show us documentary evidence of a copy of the order-in-original having been received on 19.1.2009 from the Commissioner s office. The appellant could not adduce such evidence before the Commissioner (Appeals) either. In other words, the appellant has failed to rebut the aforesaid presumption at successive appellate stages. The ROM application appears to be a desperate attempt - Decided against assessee.

Summary

Issues:
1. Rectification of apparent mistake in final order under Section 129B(2) of the Customs Act.
2. Date of communication of the order-in-original to the appellant.
3. Lawful service of the order on the appellant.
4. Rebuttal of statutory presumption under Section 153 of the Customs Act.
5. Review of the finding that the order-in-original was served on the appellant on 17.2.2004.
6. Discretion of the tribunal to recall the final order for fresh decision.

Analysis:

1. The appellant filed an application seeking rectification of an apparent mistake in the final order passed by the bench in a customs appeal. The lower appellate authority dismissed the party's appeal as time-barred due to a delay in filing against an order of adjudication. The bench confirmed that a certified copy of the order-in-original was served on the appellant on 17.2.2004, upholding the lower authority's decision. The appeal was dismissed in line with the Supreme Court's decision in Singh Enterprises vs. CCE, Jamshedpur.

2. The appellant argued that the delivery of the order-in-original to a former employee could not be considered lawful service on the appellant. The appellant presented affidavits to challenge the date of communication, claiming awareness of the order only in 2009. Despite the appellant's contentions, the bench found no grounds to review the date of service, considering the circumstances and evidence presented.

3. The bench emphasized the importance of the date of communication of the order-in-original to the appellant. The lower appellate authority had based its decision on the acknowledgment of receipt dated 17.2.2004, concluding that the appeal was significantly delayed. The bench confirmed the receipt date and noted the lack of evidence to rebut the statutory presumption under Section 153 of the Customs Act.

4. The appellant's attempt to introduce additional evidence through a Review of Order Made (ROM) application was dismissed by the bench. The bench highlighted that such evidence could not be considered for rectifying an apparent mistake in the final order. The appellant failed to provide documentary evidence to support their claims, leading to the dismissal of the ROM application.

5. The tribunal upheld the final order, emphasizing that no mistake, especially an apparent one, was found in the decision-making process. The bench clarified that a mistake apparent from the record should be easily discernible without requiring extensive arguments. The appellant's failure to rebut the statutory presumption and provide substantial evidence led to the dismissal of the application.

6. The bench, after careful consideration of all submissions, maintained the decision to dismiss the appellant's appeal. The discretion of the tribunal was not exercised to recall the final order for a fresh decision, as the grounds presented by the appellant were deemed insufficient to warrant a review. The ROM application was ultimately dismissed by the bench.