2015 (2) TMI 76 - AT - Customs

Rectification of mistake - Non consideration of issue raised by the appellant - Held that - It is admitted fact that while passing the final order by this Tribunal, both the Members have not given their finding on the issue whether the impugned goods are liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Rule 11 of the Foreign Trade (Regulation) Rules, 1993 in the facts of the case. If both the Members have considered the issue and given their finding and both the Members agrees that goods are not liable for confiscation under Section 111(d) of the Customs Act, 1962, in that case the matter is not required to be referred to the Third Member for consideration. Therefore, it is quite necessary to answer the issue whether the goods are liable for confiscation under Section 111(d) read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 or not. Matters are required to be relisted for consideration of the issue whether the goods are liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 or not; thereafter, if required, to be referred to the Third Member to answer the reference. - Following decision of Suzlon Infrastructure Ltd. 2009 (5) TMI 64 - BOMBAY HIGH COURT - Matter remanded back - Decided in favour of appellant.

Summary

Issues:
Rectification of Mistake in final order; Confiscation under Section 111(d) of Customs Act, 1962; Reference to Third Member.

Analysis:
The applicants sought Rectification of Mistake in the final order, emphasizing that the issue of goods not liable for confiscation under Section 111(d) of the Customs Act, 1962 was not addressed. The Hon'ble Member (Judicial) found no misdeclaration of value, rendering the impugned order unsustainable based on previous tribunal decisions. However, the Hon'ble Member (Technical) remanded the appeals with specific observations. The applicants argued that resolving the unaddressed issue could impact the appeal outcome, citing a relevant case law. The respondent opposed, suggesting that addressing the issue could follow Third Member reference if needed, relying on a Supreme Court judgment.

The Tribunal noted the absence of findings on whether the goods were liable for confiscation under Section 111(d) of the Customs Act, 1962. Disagreeing with the respondent's reliance on a case law, the Tribunal highlighted the importance of resolving the issue before any further steps. They indicated the possibility of both Members concluding that the goods were not liable for confiscation. Relying on a High Court decision, the Tribunal decided to relist the matter for consideration of the confiscation issue before any Third Member reference.

In a separate opinion, another Member highlighted the relevance of two issues - valuation and confiscation under Section 111(d) of the Customs Act. While the second issue was crucial for the present applicants, it was inadvertently left out in the appeals. The Member emphasized the necessity to rectify the mistake and address the second issue, as argued by both parties during the hearing. Despite the argument's prior consideration, the Member agreed with relisting the matter for a focused discussion on the confiscation issue, ensuring prompt resolution due to the prolonged pending status of the case.

In conclusion, the Tribunal allowed the application for Rectification of Mistake, directing the matter to be relisted for a thorough consideration of the issue of goods' liability for confiscation under Section 111(d) of the Customs Act, 1962. The decision aimed to resolve the unaddressed issue before any potential Third Member reference, ensuring a comprehensive and fair determination of the appeal.