2023 (6) TMI 908 - AT - Customs

Jurisdiction of the Bench to Hear the application of Rectification of Mistake - recall of the entire order - Rule 31(A) of the Customs, Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982 - HELD THAT - It does not appeal to reason as to why an application for recall of the order can be placed before another Bench of the Tribunal. If this practice is permitted to continue an appellant can resort to the practice of Bench hunting by filing an application for recall of an order before another Bench even if the matter has been decided on merits. It will be appropriate to refer to Section 129B (2) of the Customs Act which provides that the Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1). Rule 31(A) of the Customs, Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982 provides that an application for rectification of a mistake under Section 129B (2) of the Customs Act shall be heard by a Bench consisting of the Members who heard the appeal giving rise to the application, unless the President directs otherwise. Under the proviso to Rule 20, it is only where an appeal is dismissed for default that the Tribunal can make an order setting aside the dismissal, and restore the appeal. In a case where the matter has been decided on merits in the absence of the appellant, an application for recall of the order would, therefore, not lie and only an application for rectification of mistake in the order can be filed. Once an application for rectification of mistake had also been filed by the appellant, it was the bounden duty of the office to have listed the application before the same Bench - the explanation offered by the office that at least one Member of the Bench was a Member of the Bench that recalled the order is only an excuse as both the Members of the Bench that had dismissed the appeal were available on that date. It is, therefore, a fit case where a strict warning should be given to the concerned Deputy Registrar responsible for the listing of the application(s) and it is, accordingly, so ordered.

Summary

Issues involved:
The issues involved in the judgment are related to the filing of applications for recall of orders and rectification of mistakes before the Appellate Tribunal, specifically focusing on whether such applications should be placed before the same Bench that passed the original order.

Summary:

1. The judgment discusses the sequence of events where an appeal was dismissed by a Division Bench, and subsequently, the appellant filed applications for recall of the order and rectification of a mistake in the order.

2. The office noted that only an application for rectification of mistake, not recall of the order, should be placed before the same Bench as per Section 129B (2) of the Customs Act and Rule 31(A) of the Tribunal's Procedure Rules.

3. It was highlighted that an application for recall seeks to recall the entire order, while a mistake rectification application aims to rectify a specific mistake in the order.

4. Referring to Rule 20 of the rules, it was emphasized that an appeal dismissed for default can be restored, but in cases decided on merits in the absence of the appellant, only a mistake rectification application is permissible.

5. The judgment pointed out that the rectification application should have been listed before the same Bench that dismissed the appeal, as both Members were available, but the office failed to do so.

6. Consequently, the judgment issued a strict warning to the Deputy Registrar responsible for the listing error and directed the Registrar to ensure compliance with the order by forwarding it to all relevant regional benches.

7. Finally, the judgment ordered the listing of the appeal on July 03, 2023, in line with the previous order issued by the Bench.