2017 (7) TMI 589 - HC - Customs

Rectification of Mistake - time limitation - Section 129B(2) - Whether the Hon ble Tribunal erred in holding that ROM Application filed within the period of six months from the date of receipt of the order was beyond the time limit prescribed under the law? - Held that - There is nothing on record to show that the Appellant has received the copy of order on a particular date immediately after passing of the order. On the contrary, the Tribunal issued the copy of order on 9.1.2015, on the request/Application filed/made by the Appellant for the same. The statement is made that this Application for copy was moved as the Respondent/Department raised the demand on 8.1.2015. The Department s submission, that the plain reading of section itself is sufficient to reject the Application for rectification so filed by the Appellant beyond six months from the date of order, is unacceptable. There is no power and/or remedy available and/or no provision for condonation of delay in filing such Application for rectification. In the absence of any such provision, we are of the view that the second part of the Section need to be read in the interest of the Appellant. The second part of the Section read to mean that the Appeal/Application may be filed within six months from the receipt of the order. It would not be treated as beyond the prescribed period of six months from the date of order - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal under Section 130 of the Customs Act, 1962
- Interpretation of Section 129B(2) regarding the time limit for rectification of mistakes by the Appellate Tribunal

Analysis:
1. The Appellant challenged an order passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai. The issue revolved around the timing of filing a Rectification of Mistakes (ROM) Application under Section 129B of the Customs Act, 1962.

2. The Tribunal rejected the Appellant's ROM Application on the grounds of being filed beyond the six-month time limit prescribed by Section 129B(2). The Appellant filed the ROM Application on 6.7.2015 after receiving the order on 9.1.2015. The rejection led to the dismissal of the Appeal on its merits.

3. The Tribunal's decision was based on the literal interpretation of the time limit provision in Section 129B(2). However, the Appellant argued that the six-month period should be calculated from the date of receipt of the order, not the date of the order itself. The Appellant relied on a judgment by the Gujarat High Court to support their position.

4. The High Court analyzed the provisions and related laws, noting the absence of provisions for condonation of delay in filing ROM Applications. The Court emphasized that the purpose of the ROM Application was to rectify mistakes, and the strict interpretation of the time limit provision would render the party remedyless.

5. Referring to a Supreme Court judgment, the High Court held that the time taken to obtain a copy of the order should be excluded while calculating the period of limitation. The Court concluded that the Appellant's ROM Application, filed within six months of receiving the order, was within the prescribed time limit.

6. Consequently, the High Court allowed the Appeal, quashed the Tribunal's order, and restored the ROM Application for further consideration on its merits. The Court clarified that the time limit for filing such applications should be counted from the date of receipt of the order, not the date of the order itself.