2016 (1) TMI 513 - AT - Customs

Rectification of Mistake - appellant submitted that before the Tribunal they had requested for setting aside the order against the applicant. However, even though this Tribunal noted these submissions, in the findings it has been recorded that the importers (transferees of licence) very well knew that the original licence issued was a licence with actual user condition and the same is not transferable and this observation is erroneous as far as the applicant is concerned. Accordingly, he prays for recalling of the order as far as the applicant is concerned as it is an error apparent on the face of the record. Held that - We do not think it appropriate to interfere and rectify the said order under the garb of this present application and it would amount to reviewing the order on merits. In our considered opinion, as far as the applicant is concerned there is an error apparent on the fact of the record to impose penalty on the applicant to the tune of ₹ 1 lakh when the penalty of ₹ 1,10,000/- has already been imposed the Proprietorship concern i.e. M/s. Shravan Enterprises. We set aside the penalty of ₹ 1 lakh imposed on him by the impugned order. Further, the order dated 07.05.2012 is modified to the extent that penalty imposed on the applicant is set aside. Rest of the order dated 07.05.2012 would remain intact. - Decided partly in favor of applicant.

Summary

Issues: Rectification of Mistake application in an appeal regarding penalty imposition on the applicant.

Analysis:
1. The applicant filed a Rectification of Mistake application concerning an appeal decided by the Tribunal on 07.05.2012. The applicant, through his counsel, contended that he was a genuine purchaser of a transferable license without knowledge of any fraud, and he had not cleared the imported goods under the license. The applicant requested re-export of the goods, alleging a violation of natural justice in the adjudicating authority's order. The Tribunal's findings noted the applicant's submissions but erroneously stated that the importers were aware that the license was non-transferable, which was incorrect concerning the applicant. The applicant sought the order's recall due to this error apparent on the record.

2. The Tribunal heard the applicant's counsel and reviewed the order issued on 07.05.2012. The counsel argued that the applicant and his firm were the same entity, and separate penalties should not be imposed. The Tribunal, however, declined to rectify the order through the current application, stating it would amount to a review on merits. Despite finding an error in imposing a penalty of Rs. 1 lakh on the applicant when a penalty of Rs. 1,10,000 was already imposed on the firm, the Tribunal set aside the Rs. 1 lakh penalty on the applicant. The order from 07.05.2012 was modified to reflect the penalty removal from the applicant, while the rest of the order remained unchanged.

3. The Rectification of Mistake application was disposed of, with the Tribunal's decision pronounced in court on 23/12/2015.