2017 (7) TMI 1142 - AT - Customs

Rectification of mistake - Aggrieved by the inadequacy of the determination in the adjudication order, Revenue filed appeal which was disposed of in order no. A/85277/17/SMB dated 14th September 2016 by dismissal - Held that - It is ascertained from the record that the appeal of the applicant against the order-in-original had been heard by the Division Bench of this Tribunal on 18th August, 2016 and from a perusal of the records it is seen that the they were not represented in that proceeding also, just as they were not represented in the proceedings for disposing off the appeal of Revenue. The applicant appears to be seeking rectification of the order of the Division Bench by the present application to overcome the rigours method in section 129 of the Customs Act, 1962. This is certainly mis-placed. The applicant had the opportunity of raising these very same issues that are now raised in this miscellaneous application before the Bench hearing their appeal. The contentions of the applicant not being relevant and no additional detriment having been visited upon the applicant by the dismissal of appeal of Revenue, the application is without merit and is, therefore dismissed.

Summary

Issues:
1. Rectification of mistake in the adjudication order of Commissioner of Customs
2. Opportunity of being heard in appeal proceedings
3. Imposition of penalty under section 112 of the Customs Act, 1962
4. Fine in lieu of confiscation as a substitute for penalty

Analysis:

Issue 1: Rectification of mistake in the adjudication order of Commissioner of Customs
The Tribunal delved into the background of the proceedings where the Commissioner of Customs enhanced the assessable value of imported speakers and imposed penalty under section 114A of the Customs Act, 1962. The applicant sought rectification of the order, claiming they were not represented in the proceedings. However, the Tribunal clarified that the applicant had the opportunity to raise these issues during the appeal hearing but failed to do so. The Tribunal dismissed the application, stating that the attempt to reopen the case was misplaced as the issues were never raised before. The adjudication order acquired finality with the dismissal of the appeal of Revenue.

Issue 2: Opportunity of being heard in appeal proceedings
The applicant contended that they were not given an opportunity to be heard during the appeal proceedings. However, the Tribunal found that the applicant was not represented during the appeal hearing, similar to the proceedings for the appeal of Revenue. The Tribunal emphasized that the applicant could have raised the issues during the appeal hearing but failed to do so. The Tribunal dismissed the application, stating that the applicant's attempt to raise new issues after the appeal had been concluded was not valid.

Issue 3: Imposition of penalty under section 112 of the Customs Act, 1962
The applicant argued that the penalty imposed was under section 112, which was a mistake that needed rectification. However, the Tribunal clarified that the penalty (or fine) was not determined to be under section 112. The Tribunal upheld the dismissal of the appeal of Revenue, stating that the issues raised by the applicant were not considered worthy of rectification. The Tribunal emphasized that the amount in question was not held to be a penalty under section 112.

Issue 4: Fine in lieu of confiscation as a substitute for penalty
The Tribunal addressed the issue of fine in lieu of confiscation as a substitute for penalty under section 112 of the Customs Act, 1962. The Tribunal clarified that the imposition of the fine in lieu of confiscation was not considered a penalty under section 112. The Tribunal emphasized that until the recovery officer proceeds to recover the fine imposed under section 125, there is no detriment to the applicant. The Tribunal dismissed the application, stating that the contentions of the applicant were not relevant, and no additional detriment was imposed by the dismissal of the appeal of Revenue.