2019 (3) TMI 1339 - AT - Customs

Rectification of Mistake - recall of order - Held that - The appellant has approached the Hon ble High Court against the Order passed by the Tribunal vide Final Order dated 27.06.2016. The Hon ble High Court has given liberty to the appellant to file the present ROM application and also to raise the plea on factual discrepancies. Taking note of the submissions as well as the direction of the Hon ble High Court and after perusal of the impugned Order, I am of the view that the appeal requires to be re-heard in order to consider the factual discrepancies as directed by the Hon ble High Court. The impugned Final Order No. 41053/2016 dated 27.06.2016 is recalled. ROM application is allowed - The appeal is listed for hearing on 15.03.2019.

Summary

Issues involved: Rectification of Mistake (ROM) in Final Order passed by Tribunal, Allegation of using Import Export Code (IEC) of another person, Allegation of undervaluation of goods, Payment of duty, interest, and penalty by co-noticee, High Court direction to file ROM application, Consideration of factual discrepancies, Recall of impugned Final Order.

Analysis:
1. Rectification of Mistake (ROM) in Final Order: The appellant filed an application for Rectification of Mistake (ROM) seeking to rectify the mistake in the Final Order passed by the Tribunal. The appellant had earlier filed an appeal before the High Court, which directed them to file the ROM application within a specified period. The ROM application was filed within the stipulated time as per the High Court's direction.

2. Allegation of using Import Export Code (IEC) of another person and undervaluation of goods: The case involved allegations that the appellant had wrongly used the Import Export Code (IEC) of another person for importing goods and undervaluation of the imported goods. The appellant, as a co-noticee, had paid a substantial portion of the duty along with interest at the initiation of proceedings. Subsequently, the appellant paid the balance duty and 25% of the penalty. The appellant argued that as per the proviso to Section 28(1A) of the Customs Act, 1962, they should have been exonerated from further proceedings after fulfilling the payment requirements. However, these grounds were not considered by the authorities below and the Tribunal.

3. High Court direction and consideration of factual discrepancies: The Hon'ble High Court directed the appellant to file the ROM application to bring out the facts of the case before the Tribunal and raise the plea on factual discrepancies. The Tribunal, after considering the submissions and direction of the High Court, decided to recall the impugned Final Order dated 27.06.2016 and re-hear the appeal to address the factual discrepancies as directed by the High Court.

4. Decision: The Tribunal allowed the ROM application and listed the appeal for hearing on a specified date to re-hear the case and consider the factual discrepancies highlighted by the High Court. The decision to recall the impugned Final Order indicates a reconsideration of the case based on the directions from the High Court and the need to address the factual issues raised by the appellant.

This detailed analysis highlights the key legal aspects and procedural steps taken in response to the Rectification of Mistake application and the direction from the High Court to address factual discrepancies in the case.