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TMI Blog2014 (1) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-7-2012 [2013 (287) E.L.T. 71 (Tri. - Bang.)]. The Final Order was passed in the captioned appeals, one filed by M/s. Samalkot Power Ltd. (SPL for short) and other filed by M/s. Reliance Infrastructure Ltd. (RIL for short). 2.1 We have carefully perused the full text of our Final Order, bearing in mind the grievances raised by the appellants and the respondent in the present applications. We shall first deal with the respondent s grievances. It has been submitted that the correct date of Essentiality Certificate is 9-12-2011 and not 23-9-2011 mentioned in para-9(c) of the Final Order. On a perusal of the relevant records, we note that the very caption of the certificate addressed to the Deputy Commissioner of Customs refers to Essentiality Certificate dated 23-9-2011. However, the date of covering letter whereunder the Certificate was issued by the competent authority is dated 9-12-2011. The Certificate also bears dated initials of officers subordinate to the issuing authority, in its bottom margin, and these dates are all dates of December 2011. Both sides have made submissions so as to drive home to us the respective points on the basis of the dates shown on the face of the Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of sub-paras of para-11 shall be as follows : Submissions vis-a-vis grounds of appeals . 2.4 Yet another grievance raised by the respondent pertains to para-12(A)(e). In this connection, it has been submitted by the learned Special Consultant for the respondent that the subject matter of this sub-para of para 12(A) was not before the adjudicating authority and the same emanated from certain documents (opinions of three experts) produced by the appellants during the course of hearing before the Tribunal. The grievance of the respondent is that no opportunity was given to discredit the new evidence produced by the appellants. Nevertheless, in the above sub-para, it was recorded to the effect that the evidence adduced on behalf of SPL had not been contested before the Tribunal. As a matter of fact, the experts opinions/certificates produced on behalf of SPL were considered by this Bench in the context of deciding one of the substantive issues raised in their appeal viz. whether the 2400MW power project could be considered to be setting up of a new power plant. As a matter of fact, the learned counsel for the appellants had, at the bar, heavily relied on the above evidence in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara (f) ibid. We have given careful consideration to the rival submissions on the point. It is not in dispute that there was an alternative claim in RIL s appeal and that the same was for the benefit of Notification No. 21/2002-Cus., (Sl. No. 400(b)). In the operative part of the Final Order, there is a clear direction to the adjudicating authority to consider RIL s alternative claim. Neither of the appellants has pointed out any mistake in this direction issued by this Bench to the adjudicating authority. In this scenario, the findings recorded in the last two sentences of sub-para (f) of para-12(A) of the Final Order may need a modification in view of the our findings recorded in the previous sub-para (e) as also the relevant direction issued to the adjudicating authority vide para-13(v). Accordingly, the last four words of the penultimate sentence of sub-para (f) shall be deleted and the clause reading which will be addressed later in this order shall be substituted. Accordingly, the penultimate sentence of sub-para (f) will read thus : Contextually, we note that, in RIL s appeal, there is an alternative pea which will be addressed later in this order. Further, the last sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in March 2012 superseding Notification No. 21/2002-Cus., dated 1-3-2002, was not placed before this Tribunal by, or on behalf of, the appellants. That Notification was, therefore, not part of the record of the case when we passed the Final Order. What can be remedied under Section 129B(2) of the Act is a mistake or an error - factual or legal - which is apparent from the record. A Notification which was not part of the record when the Final Order was passed cannot, therefore, be reckoned at this stage. If that be so, the second Notification issued by the Central Government in the current month amending Notification No. 12/2012-Cus., dated 17-3-2012 also should remain outside the scope of the present applications. Much has been argued by the learned counsel with reference to Rule 41 and Section 151 of the Code of Civil Procedure. The point which was sought to be made by the learned counsel is that this Tribunal has inherent jurisdiction even to recall the Final Order and pass appropriate alternative orders so as to secure the ends of justice. We cannot agree with this omnibus proposition. Inherent jurisdiction was granted to all Civil courts by the legislative authority through Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voked by the appellant. The appellant s counsel argued before the Apex court that Rule 41 was wide enough to take within its sweep the recall of an order passed on the merits of an appeal if such order was necessary to secure the ends of justice. On the facts of that case, the counsel for the respondent did not oppose that argument of the counsel for the appellant. The Hon ble Supreme Court, proceeding to consider the scope of the provisions invoked before it, observed that the power to proceed ex parte carried with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. On the facts of that case, the apex court held that the Tribunal had the power to set aside the ex parte order inasmuch as the counsel for the appellant was unable to appear at the time of hearing for sufficient cause. The question before us is whether sufficient cause has been shown by the appellants for not citing Notification No. 12/2012-Cus., dated 17-3-2012 before the Bench at least at the final hearing stage. No reason whatsoever in this behalf is seen stated in the ROM applications of the appellants. We have already noted other circumstances of the case, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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