2000 (12) TMI 734 - AT - Customs

Summary

Issues:
1. Rectification of mistake in final order.
2. Applicability of penalty under Section 111(o).
3. Maintainability of Review Application (ROM) based on subsequent court decisions.

Issue 1: Rectification of mistake in final order
The application sought rectification of a mistake in Final Order No. A/963-66/99-NB, stating that the Hon'ble Calcutta High Court's judgment in Union of India v. Kumar Trading Co. clarified that Section 111(o) does not apply when imported goods are not exempted under any notification. The High Court emphasized that goods covered by the Indo-Nepal Transit Treaty should not be confiscated based on a mere apprehension of being consumed in India. The applicant cited various judgments supporting this interpretation and argued that the penalty under Section 111(o) was wrongly upheld by the Tribunal.

Issue 2: Applicability of penalty under Section 111(o)
The advocate contended that there was no violation of Section 111(o) as the goods were not cleared under any exemption notification. He relied on the Calcutta High Court's ruling that without an exemption notification, the penalty under Section 111(o) cannot be imposed. The Tribunal noted the advocate's argument and examined previous decisions to assess the legitimacy of the penalty under both Section 111(o) and Section 111(j), ultimately upholding the imposition of the penalty.

Issue 3: Maintainability of Review Application based on subsequent court decisions
The counsel argued that the ROM application should be allowed based on previous judgments permitting such applications following subsequent court decisions. However, the Respondent opposed, citing a Tribunal decision that disallowed a second ROM and emphasized that subsequent court decisions should not form the basis for rectification of mistakes. The Tribunal rejected the ROM application, citing the Gujarat State Fertilizers & Chemicals Limited case and the principle that a second ROM is not permissible. Additionally, the Tribunal found that the penalty under Section 111(o) and Section 111(j) was legally sustainable.

This detailed analysis covers the issues of rectification of mistake in the final order, the applicability of penalty under Section 111(o), and the maintainability of the Review Application based on subsequent court decisions as addressed in the legal judgment by the Appellate Tribunal CEGAT, New Delhi.