2005 (5) TMI 187 - AT - Customs

Summary

Issues:
1. Rectification of mistake application against Tribunal's order.
2. Consideration of settled legal position in passing the impugned order.
3. Failure to consider written submissions in passing the order.

Issue 1: Rectification of Mistake Application
The appellant filed a ROM application against the Tribunal's order, claiming that an error apparent was present in the order. The grounds for rectification included the failure of the Tribunal to consider the settled legal position regarding the issuance of show cause notices under Section 28 by a Collector/Commissioner for a larger period of limitation. The appellant argued that the Tribunal overlooked established legal principles, citing relevant case laws like Northern India Woollen Mills v. Collector of Customs and Bakeman's Home Products Pvt. Ltd. The appellant also referenced a High Court decision emphasizing the Tribunal's obligation to adhere to legal precedents. Additionally, the appellant contended that the Tribunal disregarded written submissions, further supporting the rectification application.

Issue 2: Consideration of Settled Legal Position
The Tribunal addressed the jurisdiction issue raised by the appellant, emphasizing that the show cause notice did not invoke the extended period under Section 28 of the Customs Act. The Tribunal clarified that the notice demanded duty based on specific grounds related to exemption compliance, not invoking Section 28. The Tribunal's analysis refuted the appellant's argument that a notice under Section 124 must be issued under Section 28, citing the Supreme Court's decision in Jagdish Cancer & Research Centre. Ultimately, the Tribunal concluded that its order did not ignore established legal principles, as it correctly applied the law based on the facts presented.

Issue 3: Failure to Consider Written Submissions
The appellant alleged that the Tribunal failed to consider written submissions within the stipulated time. However, the Tribunal asserted that it addressed all legal submissions relevant to the appeal, highlighting that it was not obligated to mention every submission explicitly. The Tribunal rejected the notion of rearguing the case through a rectification application, emphasizing that a review of its order is only permissible in the presence of an apparent error on the face of the record. Consequently, the Tribunal dismissed the ROM application, affirming the validity of its original order and rejecting the appellant's claims of oversight regarding legal principles and consideration of submissions.