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2018 (3) TMI 170 - AT - Central ExciseRectification of mistake - in the remand proceedings while considering the issue of penalty this Tribunal has not considered the fact that the provisions of Section 11AC of the Act for imposition of penalty were not in the statute book before 28.09.1996, therefore, for the period prior to 28.09.1996, no penalty is imposable on the appellant and for that reason the order of this Tribunal dated 28.02.2012 be recalled - time limitation - Held that - Hon ble Apex Court in the case of Sunitadevi Singhania Hospital Trust 2008 (11) TMI 249 - SUPREME COURT OF INDIA , held that the limitation will be applicable to the Tribunal for taking suo-moto action for rectification of mistake but the aggrieved party can file an application for rectification of mistake at any time but showing the reasons for causing delay that there has been injustice done to them by the order of this Tribunal - the affirmation of the said order of this Tribunal by the Hon ble Apex Court is through a non-speaking order, therefore, the same cannot be held that the application for rectification of mistake is barred of limitation - issue of limitation decided in favor of applicant. Merger of the order of this Tribunal with the order of Hon ble High Court as well as the Hon ble Apex Court - Held that - the order of this Tribunal does not merge with the order of the Hon ble Apex Court or the Hon ble High Court. Moreover, the Hon ble High Court itself has given liberty to the applicant to take appropriate remedy in accordance with law. Penalty for the period prior to 28.09.1996 - Held that - the order of this Tribunal dated 28.02.2012 is not correct, therefore, on the aspect of imposition of penalty prior to 28.09.1996, the issue is to be addressed by this Tribunal and only for the said issue, the order of this Tribunal dated 28.02.2012 is recalled. Application disposed off.
Issues Involved:
1. Limitation for filing an application for rectification of mistake. 2. Merger of the Tribunal's order with the orders of the High Court and the Supreme Court. Issue-wise Detailed Analysis: Issue No. 1: Limitation The Tribunal examined whether the application for rectification of mistake was barred by limitation. The applicant relied on the case of Sunitadevi Singhania Hospital Trust Vs. UOI, where the Supreme Court observed that while the period of limitation specified under Section 129B(2) of the Customs Act must be observed, the Tribunal has inherent power to recall its order if sufficient cause is shown. The principles of natural justice require that a mistake committed by the Tribunal, such as not noticing the facts involved in the appeal, should be corrected. The Supreme Court further stated that the limitation period is applicable only if the Tribunal exercises suo-motu power for rectification, not when an aggrieved party files an application within a reasonable time, showing that injustice has been done. The Tribunal also noted that the Karnataka High Court in Wipro Ltd. (Info Tech Group) supported this view, stating that the six-month limitation period applies only to the Tribunal's suo-motu actions and not to applications filed by aggrieved parties. The Tribunal concluded that the application for rectification of mistake was not barred by limitation, as the applicant had shown reasonable cause for the delay, and decided the issue in favor of the applicant. Issue No. 2: Merger of the Order The Tribunal addressed whether its order had merged with the orders of the High Court and the Supreme Court. The applicant cited Kunhayammed Vs. State of Kerala, where the Supreme Court laid down guidelines to determine if an order has merged with a higher court's order. The guidelines state that the doctrine of merger depends on the nature of jurisdiction exercised by the superior forum and the content or subject matter of the challenge. An order refusing special leave to appeal does not attract the doctrine of merger unless it is a speaking order that provides reasons for refusal. In this case, the Tribunal's order was challenged before the High Court, which dismissed the appeal but granted liberty to seek appropriate remedy in accordance with law. The Supreme Court dismissed the petition in limine. According to the guidelines in Kunhayammed, the Tribunal's order did not merge with the orders of the High Court or the Supreme Court. Furthermore, the High Court had granted liberty to the applicant to take appropriate remedy. The Tribunal found that it had not given any finding on the imposition of penalty for the period prior to 28.09.1996, and thus, the order dated 28.02.2012 was not correct. Consequently, the Tribunal recalled its order dated 28.02.2012 on the aspect of imposition of penalty prior to 28.09.1996 and fixed the matter for final hearing. Conclusion: The Tribunal concluded that the application for rectification of mistake was not barred by limitation and that its order did not merge with the orders of the High Court or the Supreme Court. The Tribunal recalled its order dated 28.02.2012 concerning the imposition of penalty for the period prior to 28.09.1996 and scheduled the matter for a final hearing.
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