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TMI Blog1993 (8) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-A was filed by the applicants under sub-section (2) of Section 129B of the Customs Act, 1962 before this Tribunal, inter alia, on the ground that there were certain basic mistakes in the said Order of the Tribunal dated 8-2-1991 which requires rectification. By Misc. Order No. 195/91-A dated 12-8-1991, the application was rejected on the ground that the Tribunal did not find any mistake apparent on the face of its record. Undaunted by such rejection, the applicants filed the present captioned application for rectification of alleged mistakes said to be apparent from the record in Misc. Order No. 195/91-A dated 12-8-1991 passed by the Tribunal on their earlier ROM Application No. 19/91-A on the ground that six pleas taken in the first ROM Application No. 19/91-A had once again not been considered by the Tribunal in its said Order dated 12-8-1991. This application was heard by the two Members Bench of this Tribunal. During hearing, it was contended by Shri Prabhat Kumar, the learned Departmental Representative, that the present application was not maintainable against an Order rejecting the previous application for Rectification of Mistake in an Order under sub-section (2) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to the said judgments of the High Courts, for whatever reason, cannot come in the way of following the ratio of these judgments by the Tribunal in a subsequent case. He also cited the case of P.H. Advani v. Harpal Singh, AIR 1975 Bom. 120 and stress was laid on paragraph 11 of the report wherein it was held that it is well settled that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Bench of that Court and further that an interpretation (and equally a misinterpretation) of a binding decision of the Supreme Court will itself be binding subsequently on co-ordinate courts and must be got corrected by a higher Court, and no co-ordinate Court on that ground may refuse to follow an earlier decision, opining that in its view the said earlier decision had wrongly understood or improperly applied a decision of a higher Court. This decision was cited to show that the case of Tracto Auto Industries Pvt. Ltd., supra, was decided by a two Member Bench of the Tribunal whereas the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, was decided by a three Member Bench of the Tribunal. To top his arguments, he submitted that the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciding the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, does not arise, as the case of Tracto Auto Industries Pvt. Ltd., supra, was decided by the North Regional Bench of the Tribunal whereas the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, supra, was decided by the Special Bench 'A' of the Tribunal. Elaborating on his submission, it was contended that under the scheme of the Customs Act, 1962 (see Sections 129, 129A, 129B & 129C), every appeal against a decision or order relating among other things, to the determination of any question having a relation to the rate of duty of customs, or to the value of goods for purposes of assessment, shall be heard by Special Bench constituted by the President for hearing such appeals whereas the appeals relating to the offence cases are to be heard by Regional Bench of the Tribunal constituted at different places, namely, at New Delhi, Madras, Bombay and Calcutta known as North Regional Bench, South Regional Bench, West Regional Bench and East Regional Bench respectively, and therefore, the decision rendered by the North Regional Bench of the Tribunal in the case of Tracto Auto Industries Pvt. Ltd., supra, and Siri Ram Bansal & Dr. N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income Tax Act, 1961 is in pari materia with Section 129-B(2) of the Customs Act and is to be interpreted liberally and cited the case of Smart P. Ltd. v. Income-Tax Appellate Tribunal, (1990) 182 ITR 384. He also cited the case of L. Hirday Narain v. ITO, (1970) 78 ITR 26 (SC), to show that multiplicity of proceedings is inherent in the judicial system. He also cited the following cases: - (1) Maharana Mills Pvt. Ltd. v. ITO, 1959 (36) ITR 350 = AIR 1959 (SC) 881; (2) Mahendra Mills Ltd. v. P.B. Desai AAC & Another, 1975 (99) ITR 135 (SC);. (3) Bihar State Road Transport Corpn. v. CIT, 1986 (162) ITR 114 (Pat.); (4) Distributors (Baroda) Pvt. Ltd. v. UOI, 1985 (155) ITR 120 (SC); (5) Shiv Deo Singh & Others v. State of Punjab, AIR 1963 SC 1909; (6) Siri Ram Bansal v. Collector of Customs, 1990 (49) E.L.T. 552 (CEGAT); (7) JTO v. Ashok Textiles Ltd., AIR 1961 (SC) 699 (Para 5); (8) Kil Kotagiri Tea & Coffee Estate Co. v. ITAT, 1988 (174) ITR 579 (Ker.); (9) Anchor Pressing Pvt. Ltd. v. CIT, AIR 1987 SC 575 (Para 5 at p. 577); (10) CIT v. Shakuntala Rajeswar, 1986 (16) ITR 840 (Delhi); (11) Mrs. KTMS Uma Salma v. CIT, 1983 (144) ITR 890 (Mad.); (12) CIT v. ITAT & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the submissions and gone through the case law cited at the Bar. 12. From the facts, as narrated above, it is clear that after the dismissal of the appeal an application under Section 129B(2) of the Customs Act was filed by the applicants before the Tribunal, inter alia, on the ground that there were certain mistakes in the Final Order of the Tribunal dated 8-2-1991, which required rectification. This application was numbered as Misc. Application No. C/ROM/19/91-A, and vide Misc. Order No. 195/91-A dated 12-8-1991 it was rejected. Thereafter the applicants filed the present application once again under Section 129-B(2) of the Act for rectification of alleged mistakes said to be apparent from the record in the said Order of rejection of the earlier application for rectification, that is to say, in Misc. Order No. 195/91-A dated 12-8-1991. Therefore, the question before us is as to whether an Order rejecting an application for rectification under Section 129B-(2) is available to be rectified under Section 129B-(2)? In other words, whether the present application is maintainable. It may be stated here that though the learned consultant for the applicants and the Interveners tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commission.] (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal: (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer: Provided X XXX X Provided X X X X X (3) XXXXXXXXXX (3) XXXXXXXXXX (4) Save as otherwise provided in Section 130 of Section 130-E, orders passed by the Appellate Tribunal on appeal shall be final (4) Save as provided in Section 256, or ders passed by the Appellate Tribunal on appeal shall be final. (Emphasis ours) 14. Here it would also be advantageous to reproduce Section 130(1) of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court: Provided X X X X X] (Emphasis ours) 15. From a reading of the said two Sections, it is clear that, these are identically worded and the key expression used in sub-section (1) is pass "such Orders" thereon and in sub-section (2) the key expressions are "within four years from the date of the Order"; "any mistake apparent from the record", and "amend any order passed by it under sub-section (1)". In the present case, as aforesaid, we are concerned with the interpretation of the expression "to amend any order passed by it under sub-section (1)" with a view to rectifying any mistake, and therefore, we are not required to dwell ourselves on the cases cited at the Bar which deal with the meaning and scope of expression "mistake apparent from the record" and for that purpose what constitutes "record", (see Maharana Mills Pvt. Ltd. v. ITO; ITO v. Ashok Textiles Ltd.; Kil Kotagiri Tea & Coffee Estate Co. v. ITAT; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Commissioner (Appeals) before the Income-Tax Appellate Tribunal. The Tribunal held that the Commissioner (Appeals) was not justified in remanding the matter for further enquiry. Thereafter, an application under Section 254(2) was filed before the Tribunal, inter alia, on the ground that there were certain basic mistakes in the Order of the Tribunal dated 25-5-1989, which required rectification. By Order dated 6-3-1990, the application was rejected. Undaunted by such rejection, the asses-see filed another application under Section 254(2) for rectification of alleged mistake in the Order dated 6-3-1990 whereby the earlier application for rectification was rejected. The Tribunal by its Order dated 13-12-1990 accepted the prayer for rectification. Against this Order of the Income Tax Appellate Tribunal dated 13-12-1990, the Commissioner of Income-Tax filed the Writ Petition in the Orissa High Court. It was argued on behalf of the Revenue that the second application for rectification was not maintainable in law. Accepting the said contention of the Revenue, the Court set aside the impugned Order dated 13-12-1990 passed by the Income-Tax Appellate Tribunal observing as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Income-Tax, (1983) 140 ITR 398. In that case a reference was made under Section 256(1) of the Income-Tax Act, 1961 by the Income Tax Appellate Tribunal to the High Court for opinion, inter alia, on the question "Whether there was any mistake apparent in the Order of the Tribunal dated 18th May, 1979, liable to be rectified u/s. 254(2) of the Act and, if so, to what effect?" The facts which led to the said reference were : Against the fresh assessment completed by the I.T.O. on 25th May, 1976, the assessee preferred an appeal before the AAC. The AAC partly accepted the claim of the assessee but confirmed the rest. Against this Order of the AAC, the assessee as well as the Department filed their appeals before the Income Tax Appellate Tribunal. The Tribunal dismissed both the appeals. The assessee after the dismissal of its appeal filed a Misc. Application under Section 254(2) of the Act seeking the rectification of a mistake said to be apparent from the record. This application was dismissed by the Tribunal vide its Order dated 18-1-1980 holding that there was no mistake apparent from the record and no question a rectification arose. The assessee thereafter sought a ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h enables a case to be stated. This view was reiterated by the same High Court in the case of Commissioner of Income Tax, A.P. v. N.J. Dadabai, (1978) 115 ITR 317. To the same effect is also the view of the Punjab High Court. In the case of R.B.L. Banarsi Dass & Co. Ltd. v. Income Tax Appellate Tribunal, (1959) 35 ITR 624, it was held by the Court that, where the Appellate Tribunal acts under S. 35 and makes an Order rectifying its Order on appeal under Section 33(4) of the Income Tax Act, 1922 a question of law arising out of the Order of rectification passed under Section 35 cannot be referred to the High Court under Section 66, as the amended Order cannot be regarded as one made under Section 33(4). 18. In the light of the above discussion, we hold that the decision rendered by this Tribunal in the case of Tracto Auto Industries Pvt. Ltd., supra, is in line with the ratio of the aforesaid cases, though no authority had been cited for taking this view in the Order and the case of Siri Ram Bansal & Dr. N.S. Bhatnagar, 1990 (49) E.L.T. 552 (Tri.) = 1990 (31) ECR 510, does not lay down the good law, so far as it relates to the present controversy. For, in that case reliance was wro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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