2018 (7) TMI 80 - AT - Customs

Rectification of Mistake - case of appellant is that the Tribunal while passing the impugned final order failed to consider the issue of jurisdiction even though the said issue was raised by the appellant in the written submissions filed on the date of hearing i.e. 19.05.2017 - Held that - The case was posted for hearing on several dates prior to 19.05.2017. On 22.03.2017, none appeared for the appellant and the Tribunal directed to issue notice as a last opportunity adjourning the case to 07.04.2017. On 09.02.2017, Revenue prayed time to adjourn the matter since similar batch of cases involving issue of SCN issued by SIIB, DGCEI and DRI are posted to 16.02.2017. Thus, on Revenue raising the issue of jurisdiction, the Bench adjourned the matter on 09.02.2017. The records do not show that the appellant/counsel had at any point of time raised the issue of jurisdiction. This Bench had heard the matter for the first time on 19.05.2017. In the circumstances, we are not able to give any credence to the affidavit filed by the ld. Counsel for appellant. A close study of the facts of this appeal reveals that the SCN dt. 21.05.2002 in this case has been issued only by the Commissioner of Customs, Chennai who is definitely not only an Officer of Customs but also the proper officer of Customs for the purposes of Section 2 (34) as also Section 28 of the Act from the very inception of the Customs Act, 1962 - the argument of Ld. Advocate that the Commissioner of Customs is not a proper officer to issue SCNs under Section 28 of the Customs Act, 1962 is misconceived. This forum had rightly found it not necessary to dwell into the aspect raised by the Ld. Advocate in his written note dated 19.05.2017 and had decided the matter only on merits - there is no apparent mistake on the Final Order No.41334/2017 dt. 26.07.2017, which requires rectification - ROM application dismissed.

Summary

Issues:
- Rectification of mistake in Final Order
- Stay of operation of Tribunal's final order
- Consideration of jurisdictional issue in Final Order

Analysis:

1. The appellant filed a ROM application seeking rectification of a mistake in the Final Order and also filed an MA for a stay of operation of the Tribunal's final order during the pendency of the ROM application. The appellant argued that the issue of jurisdiction was not considered in the Final Order, which was an error apparent on the face of the record.

2. The appellant contended that the Commissioner of Customs, SIIB, who issued the Show Cause Notice (SCN), was not a 'proper officer' as per the Customs Act, 1962. The appellant argued that the Tribunal did not consider the jurisdictional issue despite it being raised in written submissions. The appellant cited relevant case laws and submitted that the Final Order should be set aside based on jurisdictional grounds.

3. The respondent argued that the SCN issued by the Commissioner of Customs, SIIB, was valid and not flawed in terms of jurisdiction. The respondent stated that the issue of jurisdiction was not raised by the appellant during the proceedings, and thus, there was no error apparent on the face of the record.

4. The Tribunal observed that the appellant mainly focused on the merits of the case in the written submissions, with only a brief mention of the jurisdictional issue. The Bench did not prevent the appellant from arguing the jurisdictional issue during the hearing. The records indicated that the appellant did not raise the jurisdictional issue in earlier hearings, and the Bench heard the matter for the first time on 19.05.2017.

5. The Tribunal analyzed the jurisdictional issue raised by the appellant and referred to relevant legal principles established by the Hon'ble Supreme Court and High Court. It was noted that the SCN in question was issued by the Commissioner of Customs, Chennai, who was considered a 'proper officer' under the Customs Act, 1962. The Tribunal found that the SCN and the proceedings were not affected by the judgments cited by the appellant.

6. Ultimately, the Tribunal concluded that there was no apparent mistake in the Final Order regarding the jurisdictional issue. The ROM application seeking rectification was deemed meritless and dismissed. Consequently, the MA for a stay of the Tribunal's final order was also disposed of. The judgment was pronounced on 26.03.2018.