2020 (11) TMI 541 - AT - Customs

Rectification of Mistake - Error apparent on the face of record or not - certain decisions referred without establishing the relevance of those decisions - HELD THAT - We are not in position to agree with the submissions made by the applicant to the effect that there is an error apparent on record in para 4.7, of the impugned order - From the plain reading of para 4.7, it is evident that it is the finding which has been recorded by the tribunal and it cannot be said that finding is perverse. In our view any finding of fact or finding in law recorded cannot be an error apparent on record, which can be rectified in terms of Section 129 B (2) of Customs Act, 1962. Appellants in their application stated that while passing the order, tribunal has referred to certain decisions without establishing the relevance of those decisions. They referred to para 4.4, and have stated that tribunal has relied upon the decision of Hon ble Bombay High Court in case of Valecha Engineering Ltd 2009 (8) TMI 451 - HIGH COURT OF BOMBAY , without stating how the same is applicable in their case, and also they were not given the opportunity to argue against the same - After having considered and recorded the findings as available in the Order of Commissioner, tribunal has referred to this decision of Hon ble Bombay High Court and the other decisions to finally conclude the issue at para 4.7. In our view finding of facts and law as recorded in para 4.7 cannot be brushed aside as an error apparent on record for the purpose of Section 129 B(2). The decision in respect of the power of rectification, referred by the appellant will come into play only if it can be shown that there exists an error apparent on record in the impugned order. In present case in view of this we find the decision referred in para 11, 12 13 of the Rectification application filed by the appellant as distinguishable and not applicable. The application filed under Section 129 B (2) of the Customs Act, 1962, praying for rectification of mistake apparent on the face of the record is dismissed.

Issues Involved:
1. Rectification of Mistake under Section 129B(2) of the Customs Act, 1962.
2. Non-consideration of submissions by the Tribunal.
3. Demand of interest on duty under Section 28 and Section 28AA of the Customs Act.
4. Application of the doctrine of promissory estoppel.
5. Applicability of the decision in Valecha Engineering Ltd. case.
6. Relevance of the EPCG Committee's decision regarding the waiver of interest.

Detailed Analysis:

1. Rectification of Mistake under Section 129B(2) of the Customs Act, 1962:
The Applicant filed for rectification of mistake, claiming that the Tribunal did not consider certain submissions made during the hearing. The Tribunal examined whether there was an error apparent on the face of the record.

2. Non-consideration of submissions by the Tribunal:
The Applicant argued that several submissions made during the hearing were not considered in the final order. These included the erroneous assumption of short/nonpayment of duty, differences in policy provisions by government agencies, and the non-applicability of interest on amounts debited from EPCG licenses. The Tribunal noted that these submissions were recorded but found no independent findings on them in the impugned order.

3. Demand of interest on duty under Section 28 and Section 28AA of the Customs Act:
The Applicant contended that no interest is payable on the duty debited from EPCG licenses as the export obligation was in process of being fulfilled. The Tribunal, however, maintained that interest under Section 28AA is mandatory on the quantum of short/nonpayment adjudged, irrespective of how the duty is paid. The Tribunal referred to the decision in Valecha Engineering Ltd., which upheld the demand of interest under Section 28AA for duty short paid or not paid.

4. Application of the doctrine of promissory estoppel:
The Applicant argued that the demand for interest violated the doctrine of promissory estoppel, citing previous orders from the BOA and EPCG Committee. The Tribunal dismissed this argument, stating that the cited Supreme Court decisions did not apply to the facts of the present case.

5. Applicability of the decision in Valecha Engineering Ltd. case:
The Applicant claimed that the Tribunal relied on the Valecha Engineering Ltd. decision without discussing its relevance to the present case. The Tribunal clarified that it had considered the facts and submissions before referring to Valecha Engineering Ltd., and found the decision applicable to the present case.

6. Relevance of the EPCG Committee's decision regarding the waiver of interest:
The Applicant highlighted the EPCG Committee's recommendation to waive interest, which was not accepted by the Department of Revenue. The Tribunal noted that the Commissioner had recorded this rejection, and thus, the Tribunal's decision to demand interest was consistent with the law.

Conclusion:
The Tribunal found no error apparent on the face of the record that would warrant rectification under Section 129B(2) of the Customs Act, 1962. The application for rectification of mistake was dismissed, upholding the original order, which confirmed the demand of interest on the entire amount of duty payable on the imported goods. The Tribunal emphasized that findings of fact or law cannot be considered errors apparent on record for the purpose of rectification.

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