2017 (11) TMI 1013 - HC - Customs

Jurisdiction - Whether the Custom, Excise and Service Tax Appellate Tribunal exceeded its jurisdiction in the recalling its earlier order dated 26.10.2005 by restoring to powers under Sub-section 2 of Section 129B of the Customs Act? - Held that - The power of the Tribunal under Section 129B(2) of the Act is identical to the power under Section 254(2) of the Income Tax Act. Therefore, while exercising power under Section 129B(2) of the Act to rectify mistake apparent on the face of the record, would include within it the power to recall an order while exercising jurisdiction under Section 254(2) of the Income Tax Act or Section 129B(2) of the Act for rectification of mistake - identical issue decided in the case of ASSISTANT COMMISSIONER, INCOME TAX, RAJKOT Versus SAURASHTRA KUTCH STOCK EXCHANGE LTD 2008 (9) TMI 11 - SUPREME COURT , where it was held that in exercise of power under Section 254(2) of the Income Tax Act, 1962 the Income Tax Tribunal has power to recall an order passed under Section 254(1) of the Income Tax Act while exercising power of rectification as provided under Section 254(2) of the Income Tax Act - appeal dismissed - decided against Revenue.

Summary

Issues:
Jurisdiction of the Tribunal to recall its order under Section 129B(2) of the Customs Act, 1962.

Analysis:

1. Jurisdiction of the Tribunal to recall its order:
The main issue in this case revolved around whether the Customs Excise and Service Tax Appellate Tribunal (Tribunal) had the authority to recall its order under Section 129B(2) of the Customs Act, 1962. The appeal challenged the Tribunal's order dated 20th November, 2007. The substantial question of law admitted for consideration was whether the Tribunal exceeded its jurisdiction by recalling its earlier order dated 26th October, 2005 by resorting to powers under Sub-section 2 of Section 129B of the Customs Act.

2. Precedent and Legal Interpretation:
The judgment referred to previous decisions by the Hon'ble Apex Court in cases such as Honda SIEL Power Products Ltd. vs. CIT and Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. These cases established that the Tribunal, under Section 129B(2) of the Act, has the power to recall an order passed under Section 129B(1) for rectification of a mistake apparent on the face of the record. The power of the Tribunal under Section 129B(2) was equated with the power under Section 254(2) of the Income Tax Act. The Supreme Court clarified that this power is distinct from the inherent power of a Court to recall its order.

3. Conclusion and Decision:
Based on the legal interpretation and precedent set by the Supreme Court, the High Court ruled in favor of the respondent-assessee and against the appellant-revenue. The Court dismissed the appeal, stating that the Tribunal's power under Section 129B(2) includes the authority to recall an order for rectification of a mistake apparent on the face of the record. The judgment emphasized that this power is separate from the inherent power of a Court to recall its order. Consequently, the appeal was dismissed with no order as to costs.

In conclusion, the judgment clarified the Tribunal's jurisdiction to recall its order under Section 129B(2) of the Customs Act, aligning with the legal interpretation established by the Supreme Court in previous cases related to the Income Tax Act.