2017 (1) TMI 1172 - AT - Customs

Rectification of mistake - non-compliance of conditions of pre-deposit which was necessary for maintainability - Held that - on 13.7.2015, no compliance was made and thereafter the appeal was also dismissed for non-compliance. Thereafter the present application for rectification of mistake has been filed along with the affidavit. Primarily stating that there was no intentional default on the part of the appellant but we also find that there was no mistake apparent in the order dated 13.7.2015 and if we recall the order dated 13.7.2015, it would tantamount to review of our own order which is not permitted as per the various decisions cited by the learned AR for the department - application for rectification of mistake dismissed - decided against applicant.

Summary

Issues involved:
1. Application under Section 129B of Customs Act, 1962 for setting aside or recalling final order and modifying stay order.
2. Contestation by Revenue regarding dismissal of stay application and subsequent appeal dismissal for non-compliance.
3. Submission of application for rectification of mistake and contestation by Revenue regarding the same.
4. Consideration of submissions by both parties and judgment on the application for rectification of mistake.

Issue 1: Application under Section 129B of Customs Act, 1962
The appellant filed an application under Section 129B of Customs Act, 1962 seeking to set aside or recall a final order and amend a stay order by granting full and unconditional stay of recovery of dues determined by the adjudicating authority. The appellant's representative and executive submitted affidavits stating the history of the case, including previous appearances and adjournment requests. The Tribunal had dismissed the stay order for non-prosecution, directing the appellant to deposit the dues within a specified period. The appellant sought to rectify this dismissal, citing genuine reasons for non-appearance and requesting a reconsideration of the order.

Issue 2: Contestation by Revenue
The Revenue contested the appellant's application, arguing that the Tribunal's actions were justified based on the appellant's lack of compliance with the stay order and subsequent dismissal of the appeal. The Revenue highlighted the absence of challenge to the Tribunal's stay order and emphasized the non-compliance by the appellant as grounds for dismissal. Citing legal precedents, the Revenue asserted that modifying a stay order would amount to a review of the Tribunal's own order, which is not permissible under the law.

Issue 3: Submission of application for rectification of mistake
The appellant filed a miscellaneous application seeking rectification of mistake, aiming to recall the final order and the stay order. The Revenue opposed this application, maintaining that there was no mistake apparent in the orders passed by the Tribunal. The appellant's argument of no willful laches or negligence was considered, but the Tribunal found no merit in the application for rectification of mistake. The Tribunal concluded that recalling the order would constitute a review of its own decision, which is not allowed based on legal principles and precedents cited by the Revenue.

Issue 4: Consideration of submissions and judgment
After considering the arguments presented by both parties and reviewing the relevant legal authorities, the Tribunal determined that there was no mistake apparent in the orders dated 13.7.2015. The Tribunal held that recalling the order would amount to reviewing its own decision, which is not permitted under the law. Therefore, the application seeking rectification of mistake was dismissed, aligning with the legal principles and precedents cited during the proceedings.

This judgment, delivered by the Appellate Tribunal CESTAT, Bangalore, on 06/01/2017, highlights the legal intricacies surrounding the application for rectification of mistake and the limitations on modifying stay orders and final orders under the Customs Act, 1962.