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TMI Blog2016 (11) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... may consider themselves competent to form an opinion on our orders or may be dissatisfied by the 'failure' rate but that does not confer upon them the liberty to articulate, and that too in intemperate language, which, regretfully, the representative of Revenue arrogated to himself. Such lack of grace does not add to the credit of the office of the Chief Commissioner (AR) as it demonstrably reveals the failure to instill the importance of disciplined behavior and professional stoicism in the face of in favourable outcome. Our courts and tribunals are overworked owing to manifold causes and not the least of which is the apathetic abdication of responsibility by senior levels of the tax administration in the resort to litigation. Escalating the workload without justifiable cause, or even by patent ignorance, must be checked. The impulse to litigate against an order of the Tribunal that is not to its satisfaction or if the interpretation is seen as potential threat to their fief is disservice to public interest. We are not sure if the present application is motivated by ill-advice, lack of knowledge, unwillingness to accept the law, overweening desire to display juristic brillianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d various judicial decisions thus: 30. While no uniform, or a wholly coherent norm could be culled out from the several decisions adverted to (supra), we are able to identify the following principles rom the precedents, to the extent relevant and material for the purposes of the issues arising in the present case. The following principles, in our considered view emerge: (a) While considering an application or waiver of pre-deposit, the appellate Commissioner is required to avoid a mechanical and ritualistic approach. A waiver of pre-deposit application must be disposed of applying the principles set out in the judgments of the Allahabad High Court in ITC vs. Commissioner (Appeals) Meerut46 and the A. P. High Court in CCE, Guntur vs. Sri Chaitanya Educational Committee47 A summary of the principles governing the exercise of discretion in this area is set out in paragraph 14 of the judgment of the A.P High Court; (b) The Commissioner (Appeal) as the power, authorised jurisdiction to entertain an application for rectification or modification of an order of pre-deposit/ stay passed by that authority. While no power is specifically conferred on the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Bench. We are, at times, presented with applications for modification of our own orders which are, generally, not entertained except on specific orders of competent courts. We have been consistent in our interpretation that modification, by and large, tantamounts to review of our order. We are not impressed with the citing of the decision to the Tribunal in re M/s Girnar Transformers Pvt Ltd which is specific to the jurisdiction of Commissioner (Appeals) who are not governed by rules of procedures as we are. The principles in the decision cited supra serve as the framework to substitute for the existence of such procedure. 8. An application for rectification of mistakes is governed by section 129B of Customs Act 1962 and that such mistake is apparent from the records is an unavoidable pre-requisite. We are in agreement that such a rectification of mistake may, undoubtedly, be effected at any stage. M/s Suzlon Infrastructure Ltd holding that the decision of a split division bench was as yet a non-enforceable order, was intended to avoid the piquant situation of wastage of judicial time if the answer to the reference was to be taken as the earliest stage of seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) a review on merits when the error sought to be corrected is one of law and is apparent on the fact of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review Lies on merits unless a statute specifically provided for it. Obviously, when a review is sought due to G procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitae to prevent the abuse of its process and such power inheres in every court or Tribunal. It will be thus clear, that there is inherent or incidental power or procedural review in courts and tribunals to do justice. This view has been reiterated by the Supreme Court in J.K. Synthetics Ltd. v. Collector of Central Excise - 1996 (86) E.L.T. 472 (S.C.) which was a case under the provisions of the Central Excise Act. implying that the error should be such as has impacted the inherent obligation to render justice and must necessarily be apparent from the records. 9. The allegation of mistake, therefore, should not be one of belief or a contrary opinion in the mind of the applicant. The test is whether the Tribunal does concur with the applicant that a mistake d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echoes of each binding decision handed down from the higher courts and the percussion of every pronouncement from our coordinate benches set the music. Such an institutional instinct for discipline and conformity to the larger interests of equity is not easily comprehended or appreciated by other branches of government for whom grievance overrides judiciousness. We believe that we do. 12. That two persons to the same investigation in identical set of facts must not be discriminated against is also one of the pillars on which the credibility of the judicial branch rests. This article of faith would cease to be if the appellant before us were to be left worse off than others covered in the same Investigation. Hence our reliance on the decision in re Hemchand Gupta Ors. 13. The applicant is in gross error in behaving that, by the amendment in section 28 of Customs Act, 1962 which pertain only to recovery of duty, the 'officer of customs' is, in every provision of the Act and Rules, a 'proper officer'. A prejudicial understanding of a judicial decision is no substitute for diligent comprehension and responsible reaction. We, therefore, find no mistake and, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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