2017 (2) TMI 1055 - AT - Customs

Rectification of mistake - non-appearance of applicant - ex-parte order - Benefit of N/N. 21/2002 - Held that - this Tribunal cannot re-consider and re-decide the same appeal under the guise of rectification of mistake, which would be in the category of review of its own order, when the said power of review has not been provided to this Tribunal - In this regard, the Hon ble Supreme Court in the case of Commissioner of Central Excise, Belapur, Mumbai vs. RDC Concrete (India) P. Ltd 2011 (8) TMI 25 - SUPREME COURT OF INDIA , has held that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious, placing reliance in the case of T.S. Balram v. M/s. Volkart Brothers 1971 (8) TMI 3 - SUPREME Court - ROM filed by the applicant lack in sufficient force and merit - ROM dismissed.

Summary

Issues involved:
1. Restoration of Appeal (ROA) - Absence of party during proceedings.
2. Rectification of Mistake (ROM) - Alleged errors in the original judgment.

Restoration of Appeal (ROA):
The case involves the appellant, M/s Fairdeal Supplies Pvt Ltd, seeking restoration of their appeal which was dismissed on merits. The appellant's representative was absent during the proceedings, claiming the advocate was unavailable due to appearing before the Hon'ble High Court of Gujarat. However, the Tribunal noted the appellant's continuous absences on multiple occasions, indicating non-sincerity in prosecuting the appeal. The Tribunal, consisting of Hon'ble President and Member (Technical), had already decided the appeal based on submissions and grounds. The Tribunal held that the continuous absence of the appellant does not grant them an absolute right for restoration, especially when the appeal had been decided on merits. As the Tribunal becomes functus officio after deciding on merits, the application for restoration lacked sufficient reason for interference with the Tribunal's previous order.

Rectification of Mistake (ROM):
The appellant also filed a Rectification of Mistake (ROM) application, alleging glaring defects and errors in the original judgment. The appellant claimed that the samples were not correctly drawn by the department, denying them the benefit of Customs Notification No. 21/2002-03. However, the Tribunal found that the issue of entitlement to the said benefit had been extensively addressed in the original order. The Tribunal emphasized that once a matter has been decided on merits, it becomes functus officio and cannot entertain a ROM application as it would amount to a review of its own order, which is beyond its power. The Tribunal highlighted that the provision for rectification of mistake does not grant the Tribunal the power of review. Citing legal precedents, the Tribunal emphasized that rectification should only be done for obvious and patent mistakes, not for debatable points or incorrect applications of law. Consequently, the Tribunal dismissed the ROM application as it lacked merit and force.

In conclusion, both the Restoration of Appeal (ROA) and Rectification of Mistake (ROM) applications filed by the appellant lacked sufficient reason for interference with the Tribunal's previous order. The Tribunal, comprising of D. M. Misra, Member (Judicial), and Mr. Ashok K Arya, Member (Technical), dismissed both applications on 25/01/2017.