9911796707
TMI Blog2008 (11) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... ary jurisdiction. 3. The basic fact of the matter is not in dispute. 4. Appellant No. 1 which is a Charitable Tust runs a hospital on no profit basis. It imported certain equipments invoking the Notification 64/88-Cus. dated 1-3-1988 issued by the Government of India in terms whereof exemption from payment of custom duty was granted in respect thereof subject to an obligation that it would reserve 10% of the beds for patients from families having a income of less than Rs. 500/- per month and provision for free treatment of at least 40% of the outdoor patients shall be made. 5. An investigation was carried out in the year 1999 as to whether the appellant No. 1 had fulfilled all such conditions or not. The matter went before the Customs Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in not taking into consideration the contentions raised before it by the appellants, permitted it to withdraw the appeal with liberty to file an appropriate application before the Tribunal, stating : "Learned counsel states that several other points had been argued before the Tribunal which have not been taken note of by it. Learned counsel states that an appropriate application shall be filed before the Tribunal and seeks permission of the Court to withdraw the appeal. The appeal is dismissed as withdrawn accordingly." 11. Pursuant thereto or in furtherance thereof the appellant No. 1 filed an application before the Tribunal purported to be an application for rectification of mistake wherein, inter alia, the following grounds were rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and/or improper appreciation of facts has resulted in an error apparent on the face of the record in the Order dated 19-1-2006. 10. The Hon'ble Tribunal has failed to appreciate that if the obligations under Entry 2 in the table annexed to Notification 64/88 is a continuing obligation, the compliance with the obligation will also be in the nature of a continuing compliance i.e. it will have to be measured over the entire useful life of the equipment and not at any periodic rests. In the applicants' case, from the date of the import of the equipment until the destruction of the said equipment in the riots as aforesaid, the applicants have satisfied both the in-patient reservation criterion and the out patient free treatment criterion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment. 16. Indisputably, the Tribunal considered the appeals preferred by the appellants along with the appeals preferred by two others. It has been contended before us that Dr. Balabhai Nanavati Hospital had filed Customs Appeal Nos. 61 and 62 of 2006 thereagainst before the High Court which had been allowed by an order dated 11-1-2007. 17. From the Tribunal which is the final Court of fact, an assessee is entitled to obtain a judgment wherein all its contentions have been considered. If what has been contended before us by the appellants, namely, it indeed had complied with all the conditions laid down in the Notification are correct and, thus, was not liable to pay any redemption fine or penalty, the Tribunal was bound to consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of limitation specified in sub-section (2) of Section 129B of the Customs Act would not be attracted. We, however, do not mean to lay down a law that such an application can be filed at any time. If such an application is filed within a reasonable time and if the Court or Tribunal finds that the contention raised before it by the applicant is prima facie correct, in order to do justice, which is being above law, nothing fetters the judges hands from considering the matter on merit. 22. We may notice that this Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. - 1980 (Suppl) SCC 420, held that Industrial Tribunal has an inherent power to set aside an ex parte award subject of course to the condition that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e functus officio". 24. Yet again in Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. [2008 (8) SCALE 242], this Court held : "17. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict." 25. This Court, however, in a slightly different context in Jet Ply Wood (P) Ltd. and Anr. v. Madhukar Nowlakha & Ors. [(2006) 3 SCC 699] opined that even an order permitting withdrawal of a suit can be allowed to be recalled by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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