2018 (5) TMI 1570 - AT - Customs

Rectification of mistake/Review of an order - Reconsideration of the facts/evidences which were neither raised before the authorities below nor argued before this Tribunal earlier - whether amounts to review or not? - power of Tribunal to review an order - Held that - such an action on the part of the Tribunal would result into re-appreciation of the evidences and review of the order, a power not vested with the Tribunal. Also, the issues not raised during the course of argument cannot be allowed under the garb of rectification of the order. ROM application being devoid of merit, is dismissed.

Summary

Issues: Rectification of Mistake in the Order

Analysis:
The appellant sought rectification of a mistake in the Tribunal's order dated 17.4.2017 regarding the refund claim of 4% SAD on imported Coils, Sheets used in a works contract service for laying down the roofing system. The appellant claimed that a portion of the refund amount comprised of the sale of the coils and sheets along with the works contract services, which was not raised before the authorities below or argued before the Tribunal initially.

The Chartered Accountant for the appellant argued that the issue of sale as such along with works contract services should be allowed to be raised by recalling the Tribunal's order. However, the Revenue's Authorized Representative opposed this, stating that reconsideration of facts not previously raised or argued would amount to a review of the order, a power not vested with the Tribunal as per legal principles established by the Hon'ble Supreme Court in relevant cases.

After hearing both sides and perusing the records, the Tribunal found that the issue of sale of coils and sheets along with works contract services was not raised during the initial proceedings. The Tribunal noted that allowing such an issue to be considered at this stage would lead to re-appreciation of evidence and a review of the order, which is beyond the Tribunal's jurisdiction as per legal precedents cited by the Revenue's representative. Consequently, the Tribunal dismissed the appellant's application for rectification of the mistake as it lacked merit.

In conclusion, the Tribunal held that the application seeking rectification of the mistake in the order was devoid of merit and therefore dismissed it. The decision was based on the principle that issues not raised during the argument cannot be entertained under the guise of rectification, in line with legal principles established by the Hon'ble Supreme Court in relevant cases.