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TMI Blog1999 (3) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... case. 2. As regards the alternative claim for exemption under Notification 217/86, the Tribunal has decided in favour of the appellants by relying upon its earlier Order Nos. 58-59/96-C, dated 29-1-1996; 1996 (83) E.L.T. 159 (T), however, since the lower authorities have not dealt with this aspect, the matter was remanded to the Assistant Collector for examining the prayer of the applicant for benefit under this Notification. 3. The learned Counsel Shri C. Willingdon submits that the order of the Tribunal reported in [1991 (56) E.L.T. 257] has been reversed by the order dated 28-2-1997 of the Apex Court in Civil Appeal Nos. 3041-46 of 1991 [1997 (91) E.L.T. 3 (S.C.)] wherein the Hon ble Supreme Court has held that exemption to Ammonia used in the manufacture of Melamine through Molten urea is available under Notification 40/85 and since in the present case, the Tribunal has followed its earlier order cited (supra), there is a obvious mistake apparent on record and therefore, Final Order No. 159/97-C, dated 28-2-1997 [1998 (103) E.L.T. 152 (T)] requires to be recalled and rectified in the light of the judgment of the Apex Court in the applicant s own case. In support of his pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not expressly stated in the application that the order be rectified under Section 35 of the Income-tax Act. The ITO rejected the request by order dated 2-11-1957 on the ground that the assessment was completed well before the judgment of the Bombay High Court. Against the order of ITO, the company applied to the Commissioner of Income-tax under Section 33A of the Income-tax Act to revise that order but the Commissioner of Income-tax rejected the application as time barred treating it as an application for cancellation of the levy of tax, and, as an application against refusal of rectification, he held that it was not maintainable because the error was not apparent from the record but was one which could be discovered only by a process of argument and debate. The High Court allowed the Writ petition filed by the respondents under Article 226 of the Constitution of India for revising the order dated 2-11-1957 passed by the Income-tax officer. The order of the High Court was upheld by the Supreme Court. 7. In the case of Parshuram Pottery Works Co. Ltd. v. D.R. Trivedi, Wealth-tax officer reported in [1975 (100) ITR 651], the Hon ble Gujarat High Court held that the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court in Kesoram Industries and Cotton Mills case when he passed the assessment orders in the petitioner s cases and that both the decisions were given after the assessment orders were made. But these decisions did not enact or make the law in any sense but merely interpreted the expression debt owed occurring in Section 2(m) of the Act which was undoubtedly on the statute book at the time when the assessment orders were made by the Wealth-tax officer. These decisions, insofar as they declared that the amounts claimed by an assessee in respect of provision for taxation are deductible in computing the net wealth of the assessee since they represent debt owed by the assessee within the meaning of Section 2(m) of the Act, merely stated that the law had always been and must always be understood to have been . The fact that these decisions were not before the Wealth-tax officer when he made the orders of assessment in the petitioner s cases has, therefore, no material bearing on the question whether the said orders disclose any mistake apparent from the record. If that be the correct legal position, and we hold that it is, the only conclusion possible is that the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax. The judgment of the Single Judge in Sethumadhavan s case was reversed by the Division Bench of the Kerala High Court which is reported in [1982 (135) ITR 49], the petitioner applied for rectification on the basis of the Division Bench decision, and prayed that the ITAT may be pleased to hold that interest is admissible even for belated payment of advance tax. The Tribunal dismissed the petition filed by the petitioner under Section 154 of the Income-tax Act holding that rectification under that section must be of a mistake which is mistake in the light of the law in force at the time when the order sought to be rectified was passed and that the subsequent decision of the High Court has no retrospective operation as in the case of subsequent legislation or the decisions of the Supreme Court. The petitioners filed a Writ petition in the Hon ble Kerala High Court which held as under : An order of assessment, based upon an interpretation or application of law which is ultimately found to be wrong in the light of judicial pronouncements rendered subsequently, discloses a mistake apparent from the record. When the court decides a matter, it does not make the law in any sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1991 (56) E.L.T. 425], the application for rectification on the basis of Tribunal s order taking a different view and against which a reference application had been filed by the appellants and rejected by an order where a distinction was made in the facts in the cases before two Benches, was rejected holding that two different orders from two different Benches on the same question, was not within the scope of an application for rectification. 10. In the case of Saurashtra Cement and Chemical Industries v. Collector of Customs, Ahmedabad [1987 (29) E.L.T. 87], the Tribunal held that the later decision of the Tribunal giving a different interpretation would not be a ground for rectification of an earlier order and there was no case of error apparent from the record. 11. On analysing the above decisions of the Tribunal, we find that in none of them, was the Tribunal seized of a situation where the earlier order of the Tribunal had been reversed by the Apex Court nor were the judgments of the Supreme Court or High Courts, noted. In the case before us, the Tribunal s final order out of which the present ROM application arises, is based upon an earlier Tribunal decision in the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved, it was open to him to have filed an appeal before the Hon ble Supreme Court but he has chosen not to do so and instead he has filed this application. 15. A question arises whether in these circumstances it was open to the Tribunal to recall its order on the ground that subsequently Supreme Court has taken a different view in the matter regarding the interpretation and application of the Notification in question. It is also interesting to note that Tribunal had not rejected the appeal of the applicant but had allowed it by way of remand to enable the authorities below to consider the benefit in terms of Notification No. 217/86 and in the process an alternative submission of the applicant stands accepted. Therefore, their insistence on reconsideration of the matter with a view to consider it in terms of another Notification (40/85) with reference to which the Supreme Court has later given a decision in their favour is another aspect which is required to be kept in view. It is noteworthy that the applicant has even at this stage not contended that there was any error in allowing the benefit to be considered in terms of Notification 217/86. 16. In view of this factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion; And the Tribunal such as ours which has no power of review cannot recall its order which had already assumed finality; An ROM application falls in a different category and its scope is limited to error apparent on the face of record and is subject to the Supreme Court judgments on the scope of such application(s). 19. At the same time the case law cited by the ld. Counsel does show that in Income Tax and Wealth Tax cases where the High Courts have intervened by exercising writ jurisdiction, they have allowed rectification of error by assigning retrospective effect to subsequent judgments on the basis of which writ petitions were filed. I feel that insofar as Customs and Excise is concerned, it is still a grey area but it is time some objective criteria are evolved and a line distinguishing a case of rectification of mistakes from that of review or recall is drawn. It is significant that in the present case no case w.r.t. the Customs Act under which the Tribunal has been constituted or the Excise Act w.r.t. which this case has arisen has been cited by either side. 20. I therefore, feel that it will be more appropriate to refer the matter to a Larger Bench so that the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s merged in the judgment in the Supreme Court and the judgment of the Supreme Court is having retrospective effect, because it declares the correct interpretation of an already existing provision of law. Any Authoritative judgment is always considered as not laying down the law first time but declaring the law as it should have been or it should be understood to have been from its inception, in this context, he referred to the following abstract from Salmod on Jurisprudence, twelfth edition, by P.J. Fitzgerald - Exb. XXI. As we have seen, the theory of case law is that a Judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the over-ruling decision. The overruling is retrospective, except as regards matters that are res judicata or accounts that have been settled in the meantime. A repealed statute, on the contrary, remains valid and applicable as to matters arising before the date of its repeal. 24. He submitted that a subsequent judgment of the Supreme Court validly fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot bringing to the notice of the Court the relevant precedents. He also referred to the decision of the Delhi High Court in the case of Deeksha Suri v. Income Tax Appellate Tribunal [1998 (102) E.L.T. 524] wherein it was held that What is not permitted to be done by the statute and deliberately ommitted to confer review jurisdiction on the Tribunal, cannot be indirectly achieved by recourse to Section 254(11) of the Act . He also drew my attention to the observation made by the Hon ble Vice President particularly in Para 17 and 19 of the proposed order which reads as under :- 17. The Tribunal is passing a larger number of final orders, against some of which petitions/appeals do get filed, in the course of time, before High Courts or the Supreme Court and the Hon ble Courts express their views upholding many, modifying others and setting aside some. A question arises if it is so done after a couple of years or more, and let us say a particular order is set aside then will all the earlier cases decided in the past would be reopened or recalled or modified irrespective of whether appeals had been filed against them or not? 19. At the same time the case law cited by the ld. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal representative. It should be noted that the provisions under Section 35C(2) of the Central Excise Act or Section 129C(2) of the Customs Act are not in the nature of a review. The general rule is that once the Judicial order quasi judicial authority passes an order, after hearing the parties such an order becomes final so far as that authority is concerned and that the such authority has no further power to interfere with, order modify such an order, unless the statute under which that authority functions contains a suitable provision enabling that authority to do so. [1987 (32) E.L.T. 8 (S.C.)]. 29. In the case of Saurashtra Cement Chemicals Industries Ltd. v. C.C., Ahmedabad [1987 (29) E.L.T. 87 (T)] this Tribunal has taken a view that later decision of the Tribunal would not be a ground for rectification of mistake. Similar view was expressed even in the subsequent decision M.C. Desai v. Collector of Customs - 1991 (56) E.L.T. 425 (Tribunal). 30. However, it may be seen that in matters arising under the Income Tax Act or under Wealth Tax it has been held in the cases referred to by the Counsel for the appellant that an application for rectification would lie on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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