9911796707
TMI Blog1983 (9) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... petition which are reproduced as under : (a) The findings and observations of the Tribunal in the last paragraph 4 of its order Sarvashri Biswaranjan as well as Mrinal Kanti did not challenge in any way the order passed by the Deputy Collector confiscating the ornaments and imposing a penalty on them. In this manner, the said order has become final against them was not correct as Shri Biswaranjan Maity and Shri Mrinal Kanti Maity filed separate appeals before Appellate Collector of Customs against the order dated 26-3-1983 passed by the Deputy Collector of Central Excise (Gold), Calcutta confiscating the ornaments and imposing penalty on them. The said appeals were disposed of under order No. Cal-Cex-13, 13A/82, dated 24-1-1983 in appeal case No. S5-1201/82CAP/GC by the Collector (Appeals), Customs. Further, being aggrieved by the order passed by Collector (Appeals), Customs, both Shri Biswaranjan Maity and Shri Mrinal Kanti Maity submitted separate appeals before the Customs, Excise and Gold Control Appellate Tribunal on 28-4-1983 also. (b) The findings and observations of the Tribunal at para 10 of its order dated April 7, 1983 after taking into consideration the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t raised on behalf of the appellant to the effect that the order of the Departmental authorities suffered from vital defects and the alleged statement of Shri Mrinal Kanti has not been recorded by the gold control officer himself. Further, there was no discussion about the Affidavit filed by Shri Mrinal Kanti and another one Shri Saibal Kumar Samanta and that of the appellant. Hence these contentions remained undecided. (h) The Tribunal while passing its order has omitted to look into various papers supported by evidences due to oversight and/or inadvertence. 3. Shri A.K. Chakraborty, the learned advocate, who appeared on behalf of the appellant has submitted that the observation of the Tribunal in paragraph No. 4 of its order dated 7-4-1983 which reads as - Sarvashri Biswaranjan as well as Mrinal Kanti did not challenge in any way the order passed by the Deputy Collector confiscating the ornaments and imposing a penalty upon them. In this manner, the said order has become final against them. were neither argued by him nor by the Respondents and as such, the whole of the order was vitiated. The learned Counsel has submitted that the provisions inserted by Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (at page 11) Mangat Ram Kuthiala v. Commissioner of Income-tax. In the said judgment, their Lordships had observed Now it is a settled rule that a judicial tribunal can recall and quash its own order in exceptional and rare cases when it is shown that it was obtained by fraud or by palpable mistake or was made in utter ignorance of a statutory provisions and the like. Again, If the proceedings are in the nature of judicial proceedings, then irrespective of the class of the Tribunal, the rule will apply and if an order has been obtained from or has been made by a judicial or a quasi-judicial tribunal because of practice of fraud or because of palpable mistake or because of ignorance of clear statutory provisions and the like, it has inherent power to recall such an order, quash it, and make an order on merits and according to law in the ends of justice. 58 ITR 626 (at 631) (Allahabad H.C.) S.B. Singar Singh and Sons v. Income-tax Appellate Tribunal wherein the Hon ble High Court held that all courts of plenary jurisdiction have an inherent jurisdiction to rectify manifest and palpable mistakes. Referring to this judgment, the learned advocate for the petitioner pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal, the Tribunal would have the power to decide the appeal again upon notice to the party or after giving the party an opportunity of being heard. This is a power incidental or ancillary to the jurisdiction given to the Tribunal. Further in the case of Shew Paper Exchange v. I.T.O. reported in 93 I.T.R. 186 (Calcutta) it was decided by the Hon ble Calcutta High Court that the inherent power to rectify a wrong committed by itself, by a court or Tribunal is not really speaking, a power to review. The two powers operate in different fields and are different in essential quality or nature. The petitioner s contention was that the Tribunal should consider and take into cognisance certain fresh evidence which was not on record before the Tribunal at the time of hearing of the said appeal. This power is not ancillary or incidental to the powers of hearing an appeal. The right of review in the circumstances as claimed by the petitioner could not be assumed unless expressly given by statute or by rules having the force of statute. The learned Counsel lastly referred to the Allhabad High Court s judgment in the case of Gargi Din Jwala Prasad reported in 96 I.T.R. 97. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saha both had made statements on the bar and which has been duly signed by them. The same is reproduced as under : Shri A.K. Chakraborty, Advocate is present on behalf of the appellant. He states that he did not make any argument at the time of hearing before this court as to the filing or non-filing of appeals by S/Shri Biswaranjan Maity and Mrinal Kanti Maity against the order of Deputy Collector. The observation by this court is beyond record and Shri A.K. Saha, S.D.R. has pleaded that he had also not brought it to the notice before the learned predecessors as to filing and non-filing of appeals by the said two persons and he had submitted that he has got no objection if the order is recalled. Both the sides agree that there is a patent error in the order dated 7-4-1983 of the Tribunal, in appeal No. GD (T) CAL-8/83. Sd/- Sd/- A.K. Chakraborty, Advocate A.K. Saha, Senior D.R. 5-9-1983 5-9-1983 After going through the facts, records and various judgments cited by the learned advocate, and the order in original passed by this court, it appears tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are fresh evidences for the purposes of this application and as such we do not take any notice of the same. This factum was duly brought to the notice of the appellant as well as the respondent. Undoubtedly, this court has inherent powers in view of the Supreme Court s judgment in the case of I.T.O. v. Muhammad Kunhi (71 I.T.R. 815) and Puran Mal Kantia v. I.T.O. (98 ITR 39). It was also held in the case of Jagadambika Pratap v. I.T.O. (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 I.T.R. 314 - Malchand Surana v. C.I.T. 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. From the statements on bar of the advocate of the appellant as well as the S.D.R., we feel that this court had come to the conclusion that the appellant had no claim at all on the basis of the fact that S/Shri Biswaranjan Maity and Mrinal Kanti Maity had not filed appeals and as such the orders had become final against them. This goes to the ro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
