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TMI Blog2019 (3) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11 August, 2017 in six appeals. 2. During the course of arguments, when the appeals were earlier heard, both the sides had agreed that the Commissioner of Customs (Preventive), Jodhpur, who had issued a notice under Section 18(2) of the Customs Act, 1962 (hereinafter referred to as the 'Act') to seek an explanation from the Appellants as to why the provisional assessment of the second hand 'Paper Making Plant & Machinery' imported by them should not be finalized by enhancing the declared assessable value by Rs. 3,21,06,615/- and as to why customs duty amounting to Rs. 1,63,10,160/- short paid on the said amount should not be recovered from them, was not the competent authority to issue the notice in view of the decision of the Delhi High Court in Mangali Impex Ltd. vs Union of India, reported in 2016 (335) ELT 605 (Del.). In this connection, the Tribunal also noticed its earlier decision rendered on 12 June, 2017 (Final Order No. 53941-53942 of 2017), wherein the matter was remanded to the Adjudicating Authority to first decide the issue of jurisdiction, after the decision of the Supreme Court in Mangali Impex Ltd. It is for this reason that the Tribunal disposed of all the six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in any case there is no error apparent from the record. It is also his submission that since the Final Order was passed with the consent of the parties, it is not open to the Department to file applications for rectification of any mistake. Learned Consultant has also stated that though an issue was raised in the Writ Petition filed by the Appellant before the Rajasthan High Court that the Commissioner of Customs (Preventive), Jodhpur did not have the jurisdiction to issue the notice but this issue was not decided by the Rajasthan High Court and so the decision of the Rajasthan High Court will have no impact in the Appeals filed before the Tribunal. Learned Consultant also pointed out that after the Final Orders were passed, the Department refunded the pre-deposit amount in five out of the six Appeals that had been filed and, therefore, the Department cannot be permitted to file any application for rectification of mistake. 6. In order to appreciate the contentions advanced by the parties, it would first be appropriate to reproduce Section 129B(2) of the Act which confers power on the Appellate Tribunal to rectify any mistake apparent from the record and the same is reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of law or fact which remains to be investigated cannot be corrected by rectification. Paragraph 11 of the judgment is reproduced below : 11. "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word "apparent" is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality." [emphasis supplied] 10. It will also be appropriate to refer to a decision of the Supreme Court in Honda Siel Power Products Ltd. vs Commissioner of Income Tax, Delhi, reported in 2008 (221) ELT 11 (SC). The Supreme Court examined the scope of Section 154 of the Income Tax Act, 1961, which also provides for rectification of any mistake apparent from the record by any Income Tax Authority. In the rectification application filed by the assessee before the Income Tax Tribunal, it was pointed out that the earlier judgment of the Co-ordinate Bench had escaped the attention. The Supreme Court pointed out that the purpose behind the enactment of Section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal and this fundamental principle has nothing to do with the inherent powers of the Tribunal. The Supreme Court observed that one of the important reasons for giving power of rectification to the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to review. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case." [emphasis supplied] The Supreme Court in Commissioner of Central Excise, Calcutta vs A.S.C.U. Ltd., reported in 2003 (151) ELT 481 (SC), in connection with the provisions of Section 35C(2) of the Central Excise Act, 1944, which also confers power on the Appellate Tribunal to rectify any mistake apparent from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material evidence, which is present on the record, would certainly amount to mistake apparent on the face of the record and the Tribunal under the circumstances would have the jurisdiction to correct the said mistake in exercise of its powers under Section 35C(2) of the Act." [emphasis supplied] 12. The learned counsel for the Appellants has, however, submitted that the contents of the Application filed for rectification of the Order do not constitute a mistake apparent from the record and, in fact, the Application seeks a review of the Final Order after re-appreciation of the contentions. It is his submission that a mistake must be apparent on the face of the record and should not be one which is established by long drawn process of reasoning or where two opinions are possible. In support of his contention, he placed reliance upon the decision of the Supreme Court in Commissioner of Central Excise, Belapur, Mumbai vs RDC Concrete (India) P. Ltd., reported in 2011 (270) ELT 625 (SC), and in particular on paragraphs 16 and 21, which are reproduced below : "16. Upon perusal of both the orders viz. earlier order dated 4th November, 2008 and order dated 23rd November, 2009 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be decided. Moreover, incorrect application of law can also not be corrected." The learned counsel also placed reliance upon the decision of the Supreme Court in Deva Metal wherein it was held that an error apparent on the face of the record for acquiring jurisdiction to effect rectification must be such an error which may strike one on a mere looking at the record and does not require any long drawn process of reasoning. 13. It is no doubt true that evidence cannot be re-appreciated to come to a different conclusion and that 'mistake apparent from the record' cannot be something which is established by a long drawn process of reasoning of points on which there may conceivably be two opinions, but it is equally true that the purpose behind the enactment of Section 129B(2) of the Act is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal and that if a decision is based on a material which could not have been used, then the Tribunal would have the power to rectify the mistake. This apart, if the Tribunal has not considered the material evidence which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan High Court to assail the same show cause notice as being without jurisdiction and violative of Article 14 of the Constitution of India. The High Court noticed that a Writ Petition against a show cause notice would ordinarily not be maintainable unless it is shown that the show cause notice had been issued by an Authority which had no jurisdiction to issue such a notice or the notice had been issued under a wrong provision of law or on the grounds of malafide. The Court found that the grounds on which the show cause notice had been challenged could not be established and substantiated and nor did the show cause notice suffer from any lack of authority or any error of jurisdiction. The Court also expressed its concern that the writ petitioner had obtained the interim order by misleading the Court that the notice issued under Section 28 of the Act had not been served before the demand was made as there was no question of issue of any show cause notice under Section 28 at that time when the final assessment had not been made and the Writ Petition, because of this argument, was allowed to remain pending for a long period of eight years during which the final assessment could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice was issued at the stage, after the provisional assessment and before making final assessment. The red herring argument, allowed the writ petition to remain pending for a long period of eight years, during which the final assessment could not be made. 19. For the aforesaid reasons, the writ petition is dismissed, with costs quantified at Rs. 1 lac. We do not propose to make any orders with regard to fixing the time limit for giving reply to the show cause notice and for the assessment proceedings, as we have no doubt that the department will comply with the procedural provisions before any final assessment is made, and that, the petitioner will be at liberty to approach this Court, after availing the appellate remedies, in accordance with law." 16. This decision of the Rajasthan High Court was an important material which was required to be brought to the notice of the Bench at the time of hearing of the Appeal when the Final Order was passed, but it was not placed and an attempt was made to persuade the Court to remand the matter to the Adjudicating Authority as in some cases the matters were remanded in view of the decision of the Delhi High Court in Mangali Impex. As n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut being influenced by the judgment in the case of Mangli lmpex Limited (supra). 6. In other words, the Tribunal would independently apply its mind on the question of jurisdiction." Having considered the submissions of the parties and also the materials on record, this Court is of the opinion that an identical approach is necessary in these cases. Accordingly, following the order in Forech India (supra), these appeals are allowed and the CESTAT would independently apply its mind to the question of jurisdiction and also decide the appeal on merits - including the aspect of imposition of penalty if any. The appeals are allowed in part in the above terms." 18. It is, therefore, not possible to accept the contention of the learned counsel for the Appellant that the Application, in effect, seeks review of the earlier Final Order passed by the Tribunal. The Application, on the other hand, seeks to rectify the mistake apparent from the record committed by the Tribunal in view of the agreement between the parties. 19. As noticed above, the Appeals were disposed of earlier on 11 August, 2017 by remanding the matter to the adjudicating authority for taking a fresh decision as the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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