1993 (8) TMI 85 - AT - Customs

Summary

Issues Involved:
1. Maintainability of a second application for rectification of mistakes in an order rejecting a previous application for rectification under Section 129B(2) of the Customs Act, 1962.

Comprehensive, Issue-wise Detailed Analysis:

1. Maintainability of a Second Application for Rectification:

Factual Background:
The appellants, M/s Berger Paints India Ltd., filed an appeal against an Order-in-Appeal passed by the Appellate Collector of Customs, Calcutta, which was rejected by the Tribunal. Subsequently, an application for rectification of mistakes in the Tribunal's order was also rejected. The appellants then filed a second application for rectification, claiming that the Tribunal had not considered six pleas in its previous order.

Arguments by the Applicants:
The applicants argued that there is no conflict between the decisions in Tracto Auto Industries Pvt. Ltd. and Siri Ram Bansal & Dr. N.S. Bhatnagar. They contended that the case of Siri Ram Bansal is based on authoritative pronouncements, including judgments from the Patna High Court and the Supreme Court. They argued that successive applications for rectification are maintainable if there is a mistake in the order passed on the earlier application.

Arguments by the Department:
The Department argued that the second application for rectification is not maintainable, citing conflicting decisions of the Tribunal. They referenced the decisions in Tracto Auto Industries Pvt. Ltd. and Siri Ram Bansal & Dr. N.S. Bhatnagar, arguing that the latter decision should be followed as it is based on authoritative judgments.

Interveners' Arguments:
Interveners supported the applicants, arguing that the decision in Siri Ram Bansal should be followed as it was rendered by a three-member bench and is based on authoritative judgments. They also contended that the decision in Tracto Auto Industries Pvt. Ltd. stands impliedly overruled by the decision in Siri Ram Bansal.

Tribunal's Analysis:
The Tribunal analyzed the relevant provisions of the Customs Act and the Income Tax Act, noting that Section 129B(2) of the Customs Act is in pari materia with Section 254(2) of the Income Tax Act. The Tribunal referred to several judgments, including the recent decision of the Orissa High Court in Commissioner of Income-Tax v. President, Income-tax Appellate Tribunal, which held that an order rejecting an application for rectification is not available to be rectified under Section 254(2).

Key Judgments Cited:
- Orissa High Court in Commissioner of Income-Tax v. President, Income-tax Appellate Tribunal: Held that an order rejecting an application for rectification is not available to be rectified under Section 254(2) of the Income Tax Act.
- Madhya Pradesh High Court in Popular Engineering Co. v. Commissioner of Income-Tax: Held that no reference from an order rejecting an application for rectification is tenable under Section 256(1) of the Income Tax Act.
- Andhra Pradesh High Court in Venkataramayya v. I.T. Commr.: Held that granting of an application for rectification is not an order within Section 33(4) of the Income Tax Act, 1922, enabling a case to be stated for reference.
- Madras High Court in Commissioner of Income Tax, A.P. v. N.J. Dadabai: Reiterated that an order rejecting an application for rectification is not tenable for reference under Section 256(1) of the Income Tax Act.

Tribunal's Conclusion:
The Tribunal concluded that the decision in Tracto Auto Industries Pvt. Ltd. aligns with the ratio of the cited cases, while the decision in Siri Ram Bansal & Dr. N.S. Bhatnagar does not lay down the correct law. The Tribunal held that an order rejecting an application for rectification under Section 129B(2) of the Customs Act is not an order under sub-section (1) of Section 129B and thus, a second application for rectification is not maintainable.

Final Decision:
The Tribunal answered the referred question in the negative, holding that a second application for rectification of some alleged mistakes in an order rejecting an application for rectification under Section 129B(2) of the Customs Act, 1962, is not maintainable.