2005 (11) TMI 104 - AT - Customs

Summary

Issues:
1. Maintainability of the rectification of mistake application under Section 129B of the Customs Act, 1962.

Detailed Analysis:
1. The Commissioner of Customs filed an application for rectification of mistake in an Order dated 20-9-2005 passed by the Larger Bench of the Tribunal. The matter was referred to the Larger Bench due to conflicting views in previous cases. The Department sought rectification, claiming certain decisions were not considered. The question arose whether the rectification application was maintainable under Section 129B of the Customs Act, particularly sub-sections (1) and (2) of Section 129B.

2. Sub-section (1) of Section 129B empowers the Appellate Tribunal to pass orders confirming, modifying, annulling the decision, or refer the case back to the authority for fresh adjudication. Sub-section (2) allows rectification of any mistake apparent from the record within six months of the order, upon notification by the Commissioner of Customs or the other party. The issue was whether the order answering the reference made by the Referral Bench constituted a final order under sub-section (1) of Section 129B.

3. The appeal arose against an Order-in-Original and was pending before the Regular Bench. The Regular Bench referred the matter to the Larger Bench due to conflicting decisions in previous cases. The Larger Bench's reference order was not a final order but provided guidance to the Regular Bench on the applicable law for the disputed issue. The Regular Bench was tasked with resolving all issues and disposing of the appeal.

4. The Department argued that the Larger Bench had the power to rectify the alleged mistake in the reference order. However, previous case laws cited did not support this argument. The reference order was not a final order, and the Larger Bench's role was to guide the Regular Bench on the applicable law.

5. The application for rectification of mistake was deemed not maintainable under Section 129B. Previous decisions cited by the respondents supported the position that such applications do not lie against reference orders passed by the Larger Bench. The application was rejected based on the understanding that the reference order did not constitute a final order under the Customs Act.

This comprehensive analysis delves into the issues surrounding the rectification of mistake application under Section 129B of the Customs Act, providing a detailed examination of the legal provisions and precedents cited in the judgment.