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TMI Blog1988 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 1987. On all these dates of hearing, the matter could not finally be disposed of for one or the other reason. The last matter had come up on 16th June, 1987 when it was observed that the appeal was signed by the Superintendent of Central Excise (Judicial) whereas the authorisation was in favour of the Assistant Collector. After hearing both the sides, the Bench had dismissed the appeal vide Order No. 455/87-A dated 16th June, 1987. The operative part of the order is reproduced below - After hearing both sides briefly and on examination of the record, we find that the subject appeal of the Department has been signed and submitted by a Superintendent of Central Excise whereas the authorisation of the Collector of Central Excise, Madras to file the appeal against the impugned order-in-appeal was in favour of the Assistant Collector of Central Excise (Judicial), Madras. Consequently, the appeal, having not been signed and filed by a duly authorised officer of the Collector, is not a competent appeal. We dismiss it as such. 2. Now the appellants being aggrieved from the order dated 16th June, 1987 have moved an application for the recalling/restoration of appeal. Shri S. Krishn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Judicial) Madras to file an appeal to the Customs, Excise Gold Control Appellate Tribunal against the order-in-appeal No. 56/84 (M) dated 28-4-1984 passed by the Collector of Central Excise (Appeals) Madras in the case of M/s. EID Parry (I) Ltd., Ranipet . Sd/- B.R.Reddy Collector of Central Excise, Madras 5. A simple perusal of the authorisation will clearly show that it was in favour of Superintendent of Central Excise and the earlier authorisation attached along with the Memo of Appeal was in favour of Asst. Collector of Central Excise (Judicial). Apparently, there appears to be a typographical error. The bona fide of the appellants should not be doubted specially when the original records have been produced in the open court and the genuineness of which has not been doubted by the respondents. 6. Now the question before us is whether the Tribunal is competent to recall its earlier order No. 455/87-A dated 16th June, 1987. In para No. 1 of this order, we have mentioned the earlier dates of hearing and on all the dates, neither the appellants nor the respondents, had brought to the notice of the Bench the defect in the authorisation under sub-section (2) of Section 35- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set forth in the memorandum of appeal but the Tribunal in deciding the appeal shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule." Even assuming that Rules 12 and 27 are not strictly applicable, we are of the opinion that the Tribunal has got sufficient power under Section 33(4) of the Act to entertain the arguments of the Dept. with regard to the application of paragraph 2 of the Taxation Laws order and remand the case to the Income-tax officer in the manner it has done. It is necessary to state that Rules 12 and 27 are not exhaustive of the powers of the Appellate Tribunal. The rules are merely procedural in character and do not in any way circumscribe or control the power of the Tribunal under Section 33(4) of the Act. We are accordingly of the opinion that the Tribunal had jurisdiction to entertain the argument of the Dept. in this case and to direct the Income-tax officer to find whether any depreciation was actually allowed under the Industrial Tax Rules and whether such depreciation should be taken into consideration for the purpose of computing the written down value. Bombay High Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector of Central Excise, Calcutta reported in (1984 ECR 294) had held that the Tribunal had an inherent power to rectify the mistakes. Extract from the same is reproduced below :- Undoubtedly, this court has inherent powers in view of the Supreme Court s judgment in the case of ITO v. Muhammad Kunhi (71 ITR 815) and Puran Mal Kantia v. ITO (98 ITR 39). It was also held in the case Jagadambika Pratap v. ITO (76 ITR 619) that the Tribunal has inherent jurisdiction to rectify a wrong committed by itself when that wrong causes prejudice to an innocent party. There is another judgment reported in 82 ITR 314 Malchand Surana v. CIT where it was held that having decided an appeal on a preliminary issue, the Tribunal has implied jurisdiction to vacate the order in appropriate cases and hear the appeal on merits. 8. In view of the various judicial pronouncements discussed above, we are of the view that the Tribunal has got powers to rectify its own mistakes and rectification of the mistake does not amount to the review of the order. 9. Shri K. Narasimhan, the learned Advocate had cited the judgment of the Tribunal in the case of Collector of Central Excise v. Himalaya Laminators [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11A of the Act. The learned Asst. Collector had held that the containers were not returned by the buyer and the test to be adopted was to verify the facts whether all the containers were returned except in the unavoidable circumstances like breakages, loss etc. The appellants had collected sales tax from his customers. The cost of containers could not be treated as deposit. The learned Asst. Collector had confirmed the demands. 11. Being aggrieved by the aforesaid order, the respondents had filed an appeal before the Collector of Central Excise (Appeals). It was also contended before the appellants that there were endorsements on the invoices jars returnable . The learned Collector of Central Excise had observed that the appellants had indicated about the issue of circulars by them providing that amounts spent towards the cost of packing would be returned to the customers, if the containers are returned back to the appellants and this submission was not disputed by the original authority in his order. The learned Collector of Central Excise (Appeals) has held that it was not necessary that the buyer must return the container. He had allowed the appeal of the respondents. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers v. Collector of Central Excise, Indore and others reported in [1987 (27) E.L.T. 746]. He has pleaded for the rejection of the appeal. 14. We have heard both the sides and have gone through the facts and circumstances of the case. The respondents had issued circulars for the returnability of the packing viz. Jars. In the matter before us, the appellants (Revenue) has not disputed the facts of the case. It is admitted on both the sides that circulars for the returnability of the durable packing were issued and also endorsements were there to this effect. We have perused the circular dated 8th April, 1981 relating to the deposit of containers, Acid Jars and HDPE Jerry cans. We have also seen the invoice dated 31st October, 1979 which appears on page 16 of the paper book and there is endorsement of A.S. Jars - Ours returnable . It is also admitted by both sides that containers were returnable though in 95% cases, the containers were not returned. The Larger Bench in the case of Associated Cement Companies Ltd., Jabalpur others v. CCE Indore [1987 (27) E.L.T. 746 (Trib.)] , has held that the cement gunny bags were returnable and as such, the cost was not includible in the value ..... X X X X Extracts X X X X X X X X Extracts X X X X
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