2017 (12) TMI 1108 - AT - Customs

ROM application - the assessee has made a request that the Final Order No.55775-55776/2016 dated 10/08/2017 may be recalled for the reasons that benefit of reduced penalty of 25 per cent in respect of show cause notice dated 08/07/2011 has not been provided - Held that - There is no clerical or arithmetical mistake in the present appeal. The submission of the appellant has been considered. It is not necessary to impede each and every argument of the appellant. Only the cumulative effect will have to mention in the order. It may be mentioned that in the garb of rectification, fresh order cannot be passed on merit. Oversight of fact/not considering arguments is not on error and no relief can be granted in rectification - ROM application dismissed.

Summary

Issues:
Request for recall of Final Order due to alleged non-provision of reduced penalty and liability not set aside.

Analysis:
The appellant requested the recall of Final Order No.55775-55776/2016 dated 10/08/2017, citing the non-provision of the reduced penalty and the liability not set aside. The appellant specifically highlighted demands of duty and interest under bill of entry No.487751 dated 23.11.2006, as well as demands raised under Para (iii) of the Order. The appellant sought the setting aside of these demands and associated interest and penalties. The Tribunal noted the absence of the appellant during the revised hearing, while the Department was represented by Shri Manjhi, Ld. DR. The Department opposed the recall request, emphasizing that the order was passed after due consideration of both parties. The Tribunal, after considering the case facts, concluded that the appeal was decided on merits without any clerical or arithmetical errors. The Tribunal highlighted that it is not required to address each argument individually, following the principle established in the case of CIT Vs Karam C, Thappar, 176 ITR 535 SC.

The Tribunal also emphasized that a fresh order cannot be passed on merit under the guise of rectification, citing precedents such as Prajatantra Prachar Samity Vs CIT - 264 ITR 160 Orissa and CIT Vs Malwa Texturising (P) Ltd.- 292 ITR 488 (MP). Additionally, the Tribunal clarified that oversight of facts or not considering arguments does not constitute an error warranting relief under rectification, referencing the case of Ras Bihari Bansal V/s CIT 293 ITR 365 Delhi. Consequently, the Tribunal found no merit in the request for recall, ultimately rejecting the appellant's application. The order was dictated and pronounced in the open court.