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TMI Blog1998 (3) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... d, who was Custom House Agent of the importer. Clearance of the goods imported was sought under OGL on the ground that the Poppy seed is a "Diabetic Food". A show cause notice was issued to the petitioner as to why the goods imported should not be confiscated. The petitioner filed reply to the said showcause notice. The Commissioner of Customs (Preventive) Ahmedabad, by an order dated 24th January 1997, confiscated the consignment of Poppy seeds as he was of the opinion that the petitioner had violated the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Clause 3 of the Import (Control) Order, 1955 and Section 11 of the Customs Act, 1962. However, the adjudicating authority gave to the petitioner an option to pay, in lieu of confiscation, fine of Rs. 50 lakhs and also imposed penalty of Rs. 10,000,00/- (sic). Feeling aggrieved by the said order, the petitioner preferred an appeal before the Tribunal, New Delhi. The Tribunal by an order dated 24th April 1997, confirmed the order of confiscation and imposition of penalty but reduced the fine to Rs. 15 lakhs and allowed the goods to be redeemed on the basis of individual bill of entry. The above-referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of (1) Madhusudan Gordhandas Company v. Collector of Customs, Bombay - 1987 (29) E.L.T. 904 (Tribunal); (2) Jayhind Oil Mills Company v. Collector of Customs, Bombay - 1987 (28) E.L.T. 305 (Tribunal); (3) Satyanarayan Laxminarayan Hegde and Others v. Mallika Arjun B. Tirimela - AIR 1960 Supreme Court 137; (4) A.T. Sharma v. A.P. Sharma and Others - AIR Supreme Court 1047; (5) Parsion Devi and Others v. Sumitri Devi and Others - 1997 Supreme Appeals Reporter (Civil) Supreme Court 889, and (6) Deeasha Suri v. Income Tax Appellate Tribunal - 1998 (102) E.L.T. 524 (Del.) = 1997 (VI) A.D. Delhi 912. 4. Mr. J.D. Ajmera, learned Counsel for the respondents contended that apart from powers conferred by Section 129B (2) of the Customs Act, inherent power of review is available to the Tribunal for doing complete justice between the parties and as the Tribunal has rectified mistake committed by it while passing order dated April 24th, 1997, the petition should not be allowed. It was pleaded that the impugned order itself indicates that the Tribunal had committed a mistake apparent on the face of the record and as the Tribunal has directed the matter to be listed before it for hearing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or by party to the appeal. The only limitation placed on the power to amend the order is that without giving opportunity of being heard, to the affected party, order cannot be amended so as to enhance the assessment or reduce the refund or otherwise increase the liability of party concerned. Here in this case, the petitioner was heard before passing the impugned order and the order has not the effect of enhancing the assessment or reducing the refund or otherwise increasing the liability of the petitioner as the matter is going to be re-heard by the Tribunal. In the case of Madhusudan Gordhandas and Company (supra), the Tribunal has taken the view that the Tribunal is not empowered to review its own order as the power of review is not specifically conferred by the statute. What is emphasised by the Tribunal is that the Tribunal has merely power to clarify its earlier order, but, while exercising its power, the Tribunal cannot rectify the errors apparent from the record. Again in the case of Jaihind Oil Mills Company (supra), the Tribunal has held that, "once the order has been pronounced or communicated, there is no question of recalling the same and all that can be done by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court has construed Section 254(2) of the Income Tax Act and held that Section 254(2) which empowers the Tribunal to rectify any error apparent from the record does not confer power to rehear matter on merits. 6. In our view, the decision relied upon by the learned Counsel for the petitioner are not applicable to the facts of the present case, and therefore of no assistance to the petitioner. As a general rule, a judgment, decree or final order once drawn up and signed, cannot subsequently be altered, varied or amended in any manner by the Court or Tribunal which pronounced it. However, there is well recognised exception to the said general rule. It is a maxim of law that an act of a Court shall prejudice no man actus curiae neminem gravabit. Every Tribunal has an inherent jurisdiction, apart from statutory jurisdiction to correct any error committed by itself. It can invoke such jurisdiction and can exercise it in an appropriate case when its conscience is aroused and if it considers that without the exercise of such powers, the ends of the justice would be frustrated. The whole jurisdiction of the Tribunal is to pass a just order in the larger interest so that justice is done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inapplicable to decisions of Judicial Tribunal which is supposed to do complete justice to the parties before it. To extend the principle to decisions rendered by a Judicial Tribunal would indeed lead to untoward and startling results. Merely any Judicial Tribunal must be free to review its decision if it has to dispense justice to the parties though of course principles of fair play should be observed. The law on the subject has been reviewed and stated by the Supreme Court in its judgment rendered in the case of S. Nagaraj and Others v. State of Karnataka and Another, JT 1993 (5) S.C. 27. In para 18 of the judgment, the Supreme Court has held as under : "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails of judgments; or have supplied manifest defects in order to enable the decrees to be enforced; or have added explanatory matter, or have reconciled inconsistencies." Basis for exercise of the power was stated in the same decision as under : "It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard." "Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality." Thus, it becomes clear that the uppermost anxiety in the mind of the Court should be to do complete justice between the parties and when the Court finds that the mistake has crept in inadvertently, it is duty of the Court or Tribunal to correct it for doing complete justice between the parties. In view of the principle laid down by the Supreme Court in the above-quoted decisions, we are of the opinion that, the power of review is availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no substance at all. In the Rectification Application, it was specifically pleaded by the respondent that a mistake had crept in, in Para 3 of the judgment dated April 24, 1997, wherein, it was stated by the Tribunal that no evidence had been produced by the department indicating that identical goods were being sold at Rs. 50/- or Rs. 60/- per kg. in the market. The Tribunal after perusing the order has found that the observation made by the Tribunal in its order dated April 24th, 1997, was not in conformity with the facts and evidence discussed by adjudicating authority in the order-in-original. Under the circumstances, the Tribunal has recalled its earlier order by holding that the mistake had crept in while passing the order on April 24th, 1997. Having regard to the facts and circumstances of the case, it cannot be said that the error which is noticed by the Tribunal is not self-evident and could have been decided only by process of reasoning. This is a case of procedural review which is inherent or in any view of the matter implied in the Tribunal to set aside palpably erroneous order passed under a misapprehension by it. The Tribunal has found that the order recalled was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lves to follow decision of the Delhi High Court rendered in case of Deeasha Suri (supra) because principles of law laid down by the Apex Court in case of Grindlays Bank Ltd. (supra) and S. Nagaraj and Others (supra) are not taken into consideration by Delhi High Court while interpreting Section 254(2) of the Income Tax Act. Even otherwise said decision has persuasive value and not binding on this Court. On perusal of the order dated April 24th 1997 itself, the Tribunal noticed that the finding recorded against the respondent by the Tribunal was not in conformity with the facts and evidence on record, and therefore, it cannot be said that an error necessitating interference of the Court under Article 227 of the Constitution of India. As held in Nilkanth v. State of Bihar - AIR 1962 Supreme Court 1135, the power under Article 227 is exercised by the Court in its discretion and cannot be claimed as of right by any party. Therefore even if one agrees with the submission of the petitioner that the Tribunal has no jurisdiction to recall or review its earlier order, the impugned decision cannot be interfered with on a merely technical ground which does not advance substantial justice. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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