2014 (1) TMI 1459 - AT - Customs

Rectification of mistake - Correction in date of Essentiality Certificate - Linguistic mistake - EPC contract for executing the 2400MW power project - Project import - Held that - All rectifications sought by the respondents are granted - Rectification made. ROM regarding claim of benefit of notifications - Held that - the prayer made by the appellants on the basis of the two Notifications issued by the Central Government in 2012 is not liable to be entertained under Section 129B(2) of the Customs Act. - Decided against the assessee.

Issues Involved:
1. Correction of the date of the Essentiality Certificate.
2. Linguistic and substantive corrections in para-11(a) of the Final Order.
3. Clarification of submissions recorded in paragraphs 11(b) to (m).
4. Consideration of new evidence and expert opinions in para-12(A)(e).
5. Correction of findings in sub-para (f) of para-12(A).
6. Consideration of new Notifications issued by the Central Government in 2012.

Issue-wise Detailed Analysis:

1. Correction of the date of the Essentiality Certificate:
The respondent submitted that the correct date of the Essentiality Certificate is 9-12-2011, not 23-9-2011 as mentioned in para-9(c) of the Final Order. Upon review, it was noted that the certificate's caption mentioned 23-9-2011, while the covering letter was dated 9-12-2011. To resolve this, the Tribunal ordered the deletion of "dated 23-9-2011" from para-9(c), thus eliminating any specific mention of the date.

2. Linguistic and substantive corrections in para-11(a) of the Final Order:
The respondent pointed out a linguistic mistake in para-11(a). The Tribunal corrected this by deleting the first word and capitalizing the second word. Additionally, the respondent argued that the last sentence of para-11(a) did not accurately reflect their submissions regarding the Hon'ble Bombay High Court's judgment. The Tribunal substituted "Therefore" with "Even otherwise" to address this grievance.

3. Clarification of submissions recorded in paragraphs 11(b) to (m):
The respondent claimed that the submissions in paragraphs 11(b) to (m) were made against the appellants' grounds, which was not clearly reflected. The Tribunal addressed this by adding captions: "Submissions vis-a-vis Hon'ble Bombay High Court's judgment" for para-11(a) and "Submissions vis-a-vis grounds of appeals" for para-11(b) to (m).

4. Consideration of new evidence and expert opinions in para-12(A)(e):
The respondent argued that the subject matter in para-12(A)(e) was not before the adjudicating authority and arose from documents produced during the hearing. The Tribunal noted that the experts' opinions were crucial for determining whether the 2400MW power project constituted setting up a new power plant. However, the Tribunal agreed to delete the sentence "This Evidence adduced on behalf of SPL has not been contested before us." from para-12(A)(e).

5. Correction of findings in sub-para (f) of para-12(A):
The appellants contended that the findings in sub-para (f) were contradictory to sub-para (e) and misrepresented their alternative claim. The Tribunal modified the penultimate sentence of sub-para (f) to read: "Contextually, we note that, in RIL's appeal, there is an alternative plea which will be addressed later in this order." The last sentence of sub-para (f) was deleted.

6. Consideration of new Notifications issued by the Central Government in 2012:
The appellants referenced Notifications No. 12/2012-Cus., and No. 49/2012-Cus., issued after the hearing commenced, arguing for their consideration under Rule 41 of the CESTAT (Procedure) Rules. The Tribunal clarified that Section 129B(2) of the Customs Act only allows rectification of apparent mistakes based on the record at the time of the Final Order. Since these Notifications were not part of the record, they could not be considered. The Tribunal also distinguished the inherent jurisdiction under Rule 41 from the statutory powers under Section 129B(2), concluding that the appellants' prayer could not be entertained.

Conclusion:
The Tribunal allowed the respondent's ROM applications to the extent of the specified corrections and clarifications. The appellants' applications were disposed of without granting the requested relief based on the new Notifications. The judgment emphasized adherence to statutory provisions and the limitations of rectification under Section 129B(2) of the Customs Act.

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