2017 (6) TMI 143 - AT - Customs

Rectification of mistake - Section 129B (2) of the CA, 1962 - refund cannot be claimed directly without challenging the assessment order - Held that - under the garb of rectification of mistake application, appellant wants the review of the whole order for which the Tribunal has no power - the applications for rectification of mistake are not maintainable as there is no error apparent on the record which needs to be rectified - ROM application dismissed - decided against applicant.

Summary

Issues:
Rectification of mistake arising from Final Order rejecting refund claim for duty paid in excess without challenging assessment order.

Analysis:
The applicant filed five ROMs under Section 129B (2) of the Customs Act 1962 seeking rectification of mistake in Final Order Nos. 21150-21154/2014 which upheld the Commissioner of Customs (Appeals) decision rejecting the refund claim for duty paid in excess due to not availing exemption under Notification No. 2/2011-CE dated 01.03.2011. The applicant argued that there was an error on record for non-consideration of relevant legal precedents like the decision of the Hon'ble High Court and the Tribunal in other cases. The Tribunal heard both parties and examined the records presented.

The applicant's counsel contended that the impugned order dismissed the refund claim due to lack of appeal/challenge to the assessment of Bills of Entry, citing legal precedents like Priya Blue Industries Ltd. and Collector V. Flock (India) Pvt. Ltd. However, the counsel referred to the Delhi High Court's decision in the Micromax Informatics Ltd. case, which allowed refund claims without reassessing Bills of Entry post-amendment to Section 27 of the Act from 08.04.2011. The counsel also cited various decisions supporting their argument.

On the contrary, the AR for the respondent opposed the ROM applications, arguing that the Tribunal's power under Section 129B (2) is limited to correcting clear and obvious errors on record. The AR contended that allowing the applications would effectively reverse the Final Order and that seeking a review of the entire order through a rectification application is beyond the Tribunal's jurisdiction. Legal precedents like CEAT Ltd. vs. CC, Kolkata and the Supreme Court's decision in RDC Concrete (India) Pvt. Ltd. were cited to support this argument.

After considering the submissions and reviewing the records and legal precedents presented, the Tribunal concluded that the applications for rectification of mistake were not maintainable as there was no apparent error on record requiring rectification. Consequently, the Tribunal dismissed the ROM applications. The operative portion of the Order was pronounced in open Court on 28/02/2017.