Customs, Excise and Gold Tribunal - Delhi
Indian Metals And Ferro Alloys Ltd. vs Collector Of Customs on 9 March, 1991
Equivalent citations: 1991(55)ELT59(TRI-DEL)
ORDER
Harish Chander, Vice President
1. By the present ROM application, the Collector of Customs and Central Excise, Bhubaneswar has challeged the miscellaneous Order No. 23/90-B2, dated 3-8-1987 read with Order dated 13-7-1990 passed by the President and the order dated 16-7-1990 passed by the Bench re-opening the hearing of the matter. Shri M.S. Arora, learned JDR who has appeared on behalf of the Collector pleaded that there were difference of opinion between two Members and the reference was made to the President as third Member and the Third Member while deciding the point of reference has sent back the matter to the Bench which had passed the order without expressing his opinion. Shri M.S. Arora, learned JDR stated that the third Member cannot go beyond the point of reference. In support of the same, he referred to the judgment of the Patna High Court in the case of Hanutram Chandanmul v. Commissioner of Income Tax, Bihar and Orissa where the Patna High Court had held that the Third Member cannot take a different view. Shri M.S. Arora argued that in case his argument is not accepted, his alternative argument is from legal angle. He pleaded that overlooking the mandatory provision of law is the mistake of law apparent from record and the same should be rectified. In support, he has referred to the judgment of the Allahabad High Court in the case of Addl. Commissioner of Income Tax v. District Co-operative Bank Ltd. as reported in ITR (1979) Vol. 119 page 142 where High Court has held that the overlooking of a mandatory provision of law which leaves no option or discretion with the taxing authority would amount to commission of a mistake apparent on the face of the record. He has also argued that a mistake of law which is not apparent from record cannot be rectified. In support, he cited a judgment of the Supreme Court in the case of M.K. Venkatachalam, Income Tax Officer and Anr. v. Bombay Dyeing and Mfg. Co. Ltd. as reported in (1958) 34 I.T.R. wherein Hon'ble Supreme Court had held that a mistake of law is a mistake apparent from record. Lastly, Shri Arora argued that the order passed by the Tribunal re-opening the hearing is an order under the Customs Act and is liable for corrections. In support of the same, he cited a judgment from the East Regional Bench in the case of Collector of Cus. v. Metro Exporters Pvt. Ltd. as reported in 1988 (37) ELT 610 (Tribunal). Shri Arora has pleaded for the rejection of the order dated 16-7-1990 and acceptance of the application for rectification of mistakes.
2. Shri K. Narasimhan, learned Advocate who has appeared on behalf of the assessee stated that no ROM is maintainable as no finality of the decision has been reached. He has pleaded for the rejection of the application for rectification of the mistakes.
3. We have heard both sides and gone through the facts and circumstances of this case. Before we proceed to decide the present ROM application, we feel that reproduction of the relevant provisions of law is every essential. Section 129B is reproduced below :-
"(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
(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:
Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(3) The Appellate Tribunal shall send a copy of every order passed under this section to the Collector of Customs and the other party to the appeal.
(4) Save as otherwise provided in Section 130 or Section .130E, orders passed by the Appellate Tribunal on appeal shall be final."
A simple perusal of Sub-section (1) shows that after giving an opportunity of being heard, the Tribunal may pass orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary, and Sub-section (2) further gives the power to the Tribunal to rectify a mistake apparent from record, amend any order passed 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. The order passed by the Members differing from each other is not a final order and a difference of opinion had arisen which was referred to the President in terms of the provision of Sub-section (5) of Section 129C of the Customs Act, 1962 and the President while disposing of the point of reference, it came to the knowledge of the President while deciding the point of reference a judgment of the Supreme Court in assessee's own case where the present Show Cause Notice which is the subject matter of the appeal in continuation to the earlier Show Cause Notice was struck down by the Orissa High Court while order dated 4-7-1984 in writ petition No. OJC 1549 of 1984 and in that matter 7 Show Cause Notices were involved and all the Show Cause Notices were withdrawn and the President had referred the matter back to the Bench which had passed the original order. Hon'ble Allahabad High Court in the case of Jan Mohammed, Nainital v. Commissioner of Income Tax as reported in AIR 1953 Allahabad 119 had held that where a point is referred to Third Member, he can decide only the point that has been referred to him and he cannot formulate a new point for himself on which he could base his decision, and that after the decision of the point or points referred to him by the Third Member, the case should go back to the original Tribunal because the Third Member has not been given any right to decide the appeal. The Tribunal, when finally disposing of the appeal may, no doubt, allow other points to be raised before it, if they consider it proper. The Third Member, however, can only answer the point or points that were referred to him for decision and on which there was a difference of opinion. After the difference of opinion the orders till date passed by the Tribunal are not final orders and the mistakes, if any, cannot be rectified in terms of provisions under Sub-section (2) of Section 129B of the Customs Act, 1962.
4. In view of this discussion, we are of the view that since the orders passed by the Tribunal so far are not final order disposing of the appeal, there is no question of making any rectification in the orders passed by us. Accordingly, the application for rectification of mistakes filed by the Revenue is dismissed.