2016 (11) TMI 1266 - AT - Customs

Rectification of mistake - stay of recovery - the Bench, while granting the interim prayer of the appellant, appeared to have been guided by the decision of the Principal Bench in Hem Chand Gupta & Sons Versus Commissioner of Cus. (ICD) , New Delhi 2015 (1) TMI 1266 - CESTAT NEW DELHI instead of following the decision of the Hon ble High Court of Bombay in Sunil Gupta v. Union o India & Ors 2014 (12) TMI 151 - BOMBAY HIGH COURT - Held that - The applicant is in gross error in behaving that, by the amendment in section 28 of Customs Act, 1962 which pertain only to recovery of duty, the officer of customs is, in every provision of the Act and Rules, a proper officer . A prejudicial understanding of a judicial decision is no substitute for diligent comprehension and responsible reaction. We, therefore, find no mistake and, hence, no cause to entertain the present application before us. Before we part with the matter, we also take note of the behavior of the representative of Revenue while seeking the rectification. Both sides of the bar may consider themselves competent to form an opinion on our orders or may be dissatisfied by the failure rate but that does not confer upon them the liberty to articulate, and that too in intemperate language, which, regretfully, the representative of Revenue arrogated to himself. Such lack of grace does not add to the credit of the office of the Chief Commissioner (AR) as it demonstrably reveals the failure to instill the importance of disciplined behavior and professional stoicism in the face of in favourable outcome. Our courts and tribunals are overworked owing to manifold causes and not the least of which is the apathetic abdication of responsibility by senior levels of the tax administration in the resort to litigation. Escalating the workload without justifiable cause, or even by patent ignorance, must be checked. The impulse to litigate against an order of the Tribunal that is not to its satisfaction or if the interpretation is seen as potential threat to their fief is disservice to public interest. We are not sure if the present application is motivated by ill-advice, lack of knowledge, unwillingness to accept the law, overweening desire to display juristic brilliance or merely an exercise in evading responsibility. We are certain that it demonstrates impulsive reaction without even the most rudimentary application of mind. To condone that is to abet in condoning irresponsible behavior and to encourage frivolous litigation. To that end, we impose costs of ₹ 10,000/- on the applicant-Commissioner to be paid in to the Prime Minister s Relief Fund within 45 days of receipt of the order. Application for rectification of mistake dismissed.

Summary

Issues Involved:
1. Rectification of mistake in an interim order.
2. Jurisdiction and procedural norms for rectification.
3. Interpretation of 'proper officer' under Customs Act, 1962.
4. Applicability of judicial precedents and principles.
5. Conduct and behavior of the Revenue representative.

Detailed Analysis:

1. Rectification of Mistake in an Interim Order:
The respondent, Commissioner of Customs (Export-II), Mumbai, sought rectification of an interim order (S/428-431/15/CB dated 10th August 2015) under section 129B of the Customs Act, 1962, and rule 31A of the CESTAT (Procedure) Rules, 1982. The interim order had granted a stay on the recovery of amounts confirmed in the adjudication order. The applicant argued that the Tribunal had erroneously followed the decision in Hem Chand Gupta & Sons instead of the Bombay High Court's decision in Sunil Gupta v. Union of India.

2. Jurisdiction and Procedural Norms for Rectification:
The Tribunal highlighted that rule 28A of the CESTAT (Procedure) Rules, 1982, does not envisage the review of a stay order passed by the Bench. Applications for modification of orders are generally not entertained except on specific orders from competent courts. The Tribunal emphasized that the power to rectify mistakes is limited to errors apparent on the record, as governed by section 129B of the Customs Act, 1962.

3. Interpretation of 'Proper Officer' under Customs Act, 1962:
The Tribunal noted that the show cause notice was issued by the Additional Director General, Directorate of Revenue Intelligence, who was not a 'proper officer' and thus lacked jurisdiction. This was in line with the Principal Bench's decision in Hemchand Gupta. The Tribunal clarified that the amendment to section 28 of the Customs Act, 1962, which pertains to the recovery of duty, does not extend to the entire Customs Act or the Rules framed thereunder.

4. Applicability of Judicial Precedents and Principles:
The Tribunal referred to various judicial decisions, including the principles enunciated in Ms Girnar Transformers Pvt Ltd v. Commissioner of Central Excise, Kanpur, and the Bombay High Court's decision in Suzlon Infrastructure Ltd v. Union of India. The Tribunal emphasized that the rectification of mistakes should correct errors apparent on the record and not alter decisions to alleviate dissatisfaction. The Tribunal also stated that the reliance on Hemchand Gupta was justified to ensure consistency and prevent discrimination among entities involved in the same investigation.

5. Conduct and Behavior of the Revenue Representative:
The Tribunal criticized the behavior of the Revenue representative, noting that intemperate language and lack of disciplined behavior do not add credit to the office of the Chief Commissioner (AR). The Tribunal imposed costs of ?10,000 on the applicant-Commissioner, to be paid into the Prime Minister’s Relief Fund within 45 days, highlighting the need to check frivolous litigation and the impulsive reaction without proper application of mind.

Conclusion:
The application for rectification of the mistake was dismissed. The Tribunal emphasized the importance of disciplined behavior, adherence to judicial norms, and the limited scope of rectification to errors apparent on the record. The costs imposed on the applicant-Commissioner underscored the need to prevent frivolous litigation and ensure responsible conduct by the Revenue representatives.