Customs, Excise and Gold Tribunal - Delhi
Electrosteel Castings Ltd. vs Collector Of Central Excise on 3 August, 1989
Equivalent citations: 1992(42)ECR392(TRI.-DELHI)
ORDER Harish Chander, Member (J)
1. M/s. Electrosteel Castings Ltd., has filed an application under Section 35C(2) of the Central Excises and Salt Act, 1944 i.e. the order of the Tribunal vide Order No. 594/87-B1 dated 21st May, 1987. The appeal was dismissed by the Tribunal on merits. On the date of the hearing the appellants did not appear and therefore the appeal was disposed of by an ex pane order. By the present Misc. Application for restoration of appeal the applicant seeks the recalling of the Tribunal's earlier order No. 594/87-B1 dated 21st May, 1987 in the alternative for the rectification of mistakes. Shri S.K. Bagaria, the learned Advocate who has appeared on behalf of the applicant has reiterated the contentions made in the Misc. Application in support of his argument. For the recalling of the order he has cited 3 judgments. Income-Tax Officer, "F" Ward, District IV(2), v. Murlidhar Sarda reported in 99 ITR 485, where the Hon'ble Calcutta High Court had held that the Tribunal had inherent jurisdiction ancillary to the jurisdiction given by Section 254 of the Income-Tax Act, 1961, to restore and rehear an appeal disposed of on the merits in the absence of any party who has been prevented by reasonable and sufficient cause from appearing before the Tribunal at the hearing of the appeal and directed the Tribunal to consider the application for restoration and rehearing of the appeal. This is a division bench judgment. Earlier there was a single Bench decision reported in 92 ITR 189 Murlidhar Surda v. Income-Tax Appellate Tribunal, Calcutta. He has argued that similar view was taken by the Kerala High Court in the case of Commissioner of Income-Tax v. Income-Tax Appellate Tribunal reported in 120 ITR 231, where it was held that the power to set aside its ex pane order in the interests of justice is inherent in the Appellate Tribunal and could be traced to Sub-section (1) of Section 254 of the Income-Tax Act, 1961. Giving a reasonable opportunity of being heard as stated under Sub-section (1) of Section 254 is essentially part of the jurisdiction of the Tribunal and when the Tribunal is satisfied that the ex pane order happened to be passed without any reasonable opportunity of being heard to the aggrieved party, it has got jurisdiction to set aside the order and proceeded to pass a fresh order after hearing both the sides as enjoyed in that provision. Merely for the reason that there is no specific provision in Rule 25 of the Rules enabling the Appellate Tribunal to set aside the ex parte order passed on merits it cannot be said that the power of the Appellate Tribunal under Section 254(1) would not carry with it the power to make available reasonable opportunity of being heard to the aggrieved party when it has subsequently realised that the ex parte order happened to be passed virtually without the aggrieved party having had the benefit of being heard. There is no express provision prohibiting the Tribunal from exercising the power to set aside such ex parte order. Therefore, it must be presumed that the power under Section 254(1) extends to the power of setting aside an ex parte order in the interests of justice when the Tribunal is clear in its mind that provision under the sub-section in its true spirit had not been complied with the passing of the ex pane order. Shri Bagaria, the learned Advocate also stated that he is aware of earlier judgment from the Tribunal which are against him. The judgments are as under:
1. Heilgers Ltd., Calcutta v. Collector of Customs, Cal.
2. Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. Collector of Customs, Bombay.
3. Nimmala Satyanarayan v. Collector of Customs and Central Excise, Guntur.
4. J.K. Synthetics Ltd. v. Collector, Central Excise.
Shri Bagaria, the learned Advocate has referred to para No. 5 of the Tribunal's order. He had argued that at the material lime old Rule 11 was applicable and read with Rule 173J, the limitation was one year and the first refund application filed on 20th May, 1974 for the period from 6th March, 1973 to 27th February, 1974. He has also stated that the classification list was filed. He has pleaded for recalling of the order in the alternative the mistakes may be rectified. Shri V.M. Doiphode the learned SDR who has appeared on behalf of the respondent suited that the application filed by the appellants should be dismissed. He has argued mat Section 35C is not pari materia to Income-Tax to Section 254(1) of the Income-Tax Act, 1961. There is negligence on the part of the appellants. No telegram was sent to the CEGAT for adjournment dated 19th day of September, 1987 whereas the dale of hearing was on 17th September, 1987. There is no justification for the recalling of the order. On merits he has argued that no appeal filed against the classification list and no refund application could have been filed by the appellants. In support of his contention he has referred to a judgment of the Tribunal in the case of Herschel Rubber (P) Ltd. v. Collector of Central Excise, Calcutta . He has also stated that the percentage of carbon was 2% is also disputable. The Tribunal had come to the conclusion after carefully going through the whole matter and there is no mistake apparent of record. The matter is arguable. He has referred to Anr. judgment of the Tribunal in the case of Shri Laxmi Textile Mills v. Collector of Central Excise, Bombay . He has pleaded for the rejection of the application.
2. We have heard both the sides and have gone through the facts and circumstances of the case. The Tribunal does not have power to review its own order. The earlier judgments of the Tribunal arc against the applicant. The Tribunal has dealt with the issue at length in the case of Heilgers Ltd., Calcutta v. Collector of Customs, Calcutta . Accordingly, we arc of the view that interfering at this stage will mean review of the order. The Tribunal has got no power to review its own order. The judgments cited by the learned Advocate under Income-Tax Act does not help him. There are earlier judgments of the Tribunal. We do not find any reason to differ from the earlier view of the Tribunal. Regarding the allowing of refund claims on merits we are of the view that it is an arguable mailer, Hon'ble Supreme Court in the case of T.S. Balaram, I.T. Officer, Company Circle IV, Bombay v. Volkart Brothers, Bombay , had held that where there have to be elaborate arguments from both the sides, it cannot be treated as a mistake apparent from record. Accordingly, we are of the view that the present application docs not come within the purview of the rectification. We do not find any merit in the application. The application is rejected.