1991 (3) TMI 244 - AT - Customs

Summary

Issues:
1. Challenge to miscellaneous orders by the Collector of Customs and Central Excise, Bhubaneswar.
2. Interpretation of provisions under Section 129B of the Customs Act, 1962 regarding rectification of mistakes by the Appellate Tribunal.

Analysis:
1. The Collector challenged miscellaneous orders, citing a difference of opinion between two Members and a subsequent reference to the President as the Third Member. The Collector argued that the Third Member cannot go beyond the point of reference, citing legal precedents like the Patna High Court judgment in Hanutram Chandanmul v. Commissioner of Income Tax. Additionally, the Collector contended that overlooking mandatory provisions of law constitutes a mistake of law apparent from the record, referencing the Allahabad High Court judgment in Addl. Commissioner of Income Tax v. District Co-operative Bank Ltd. The Collector further argued that the order re-opening the hearing is subject to corrections under the Customs Act, supported by the judgment in Collector of Cus. v. Metro Exporters Pvt. Ltd.

2. The assessee's representative opposed the application for rectification of mistakes, stating that no final decision had been reached. The Tribunal examined the relevant provisions of law, particularly Section 129B of the Customs Act, 1962. It noted that the Tribunal can pass orders confirming, modifying, or annulling the decision appealed against, or refer the case back for fresh adjudication. Sub-section (2) allows the Tribunal to rectify mistakes apparent from the record, provided notice and an opportunity to be heard are given. The Tribunal emphasized that the orders with differing opinions were not final, as a reference to the President had occurred under Section 129C of the Act. Citing legal precedents, including the Allahabad High Court judgment in Jan Mohammed, Nainital v. Commissioner of Income Tax, the Tribunal clarified that the Third Member's role is limited to deciding the referred point of difference, and the case should return to the original Tribunal for final disposal.

3. Consequently, the Tribunal concluded that since the orders passed were not final, there was no basis for rectification of mistakes. Therefore, the application for rectification filed by the Revenue was dismissed.

This judgment highlights the procedural intricacies involved in challenging tribunal orders, the limitations on rectifying mistakes, and the importance of following legal provisions and precedents in such matters.