2023 (10) TMI 1174 - AT - Customs

Rectification of mistake - Error apparent on the face of record - appeal is dismissed under litigation policy - HELD THAT - It is found that the appeal filed by the appellant before this tribunal in case of seizure/confiscation of gold biscuits to be maintainable before this Tribunal. Accordingly the same is dismissed as non maintainable. Same should have been the fate of the appeal filed by the Revenue which has been against the same order of Commissioner (Appeals). The appeal of the revenue was also filed before the wrong forum and could have been dismissed as not maintainable. However the bench dismissed the appeal on the ground that the amount involved in appeal is less than the threshold limit provided for by the litigation policy circular issued by the revenue. Against the order dismissing the appeal filed by revenue for the reason of amount involved revenue has filed the application for rectification. When Revenue itself has stated in appeal as above they cannot claim any error apparent on record taken for which their appeal was dismissed. The grounds stated in the application for rectification of mistake are not the part of records before the tribunal for consideration. The new facts and grounds taken in the rectification application which were never the part of the appeal considered cannot justify the rectification application. Accordingly this rectification of mistake application can be dismissed on this ground itself. Rectification of Mistake application filed by the Revenue is dismissed.

Summary

Issues involved:
The issues involved in the judgment are the rectification of mistake application filed by the Revenue under section 129B (2) of Customs Act 1962 and the appeal challenging the order of confiscation of gold with an option to redeem the penalty imposed.

Rectification of Mistake Application by Revenue:
The Revenue filed a rectification of mistake application under section 129B (2) of Customs Act 1962, seeking to rectify an error in the Final Order where their appeal was dismissed under the litigation policy. The Revenue argued that the appeal was not maintainable as the redemption fine and penalties involved exceeded the monetary limit prescribed by the CBEC for filing appeals in CESTAT. They also pointed out that the Circulars issued by CBIC applied only to legacy cases of Central Excise and Service Tax, not Customs cases. The Tribunal found that the grounds stated in the rectification application were not part of the original appeal records, and even if allowed, the appeal would still be dismissed as non-maintainable.

Appeal Challenging Confiscation of Gold:
The appellant filed an appeal challenging the order of confiscation of gold with an option to redeem the penalty imposed. The Tribunal, citing previous decisions, found that the appeal was not maintainable before the Tribunal as the gold jewelry was brought as part of baggage and not declared. The Tribunal dismissed the appeal as non-maintainable, stating that the matter may be transferred to the Government Revisionary Authority if permissible in law. The appellant was advised to file an appeal with the Revisionary Authority notified by the Government of India.

Judicial Precedents and Decision:
The Tribunal referred to previous decisions where appeals were rejected as not maintainable due to the nature of the goods being brought as baggage. The Tribunal emphasized that if goods are brought as baggage, they must be treated as such. The Tribunal also highlighted the importance of maintaining jurisdiction and proper forum for filing appeals. The Tribunal dismissed both the rectification of mistake application filed by the Revenue and the appeal filed by the appellant as non-maintainable before the Tribunal.

Operative Part of the Order:
In conclusion, the Tribunal dismissed the Rectification of Mistake application filed by the Revenue and also dismissed the appeal filed by the appellant as not maintainable before the Tribunal. The appellant was advised to seek any remedy available by filing an appeal before the appropriate revisionary authority notified by the Government of India.