Bombay High Court
Ingram Micro India Pvt Ltd vs The Union Of India And 2 Ors on 9 November, 2022
Author: K. R. Shriram
Bench: K. R. Shriram
Digitally signed
by GAURI
GAURI AMIT
AMIT GAEKWAD
GAEKWAD Date:
2022.11.15 1/8 411-WP-475-2020.doc
14:52:20 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.475 OF 2020
Ingram Micro India Private Limited .....Petitioner
Vs.
The Union of India and Ors. .....Respondents
----
Mr. Sriram Sridharan for petitioner.
Mr. Jitendra B. Mishra a/w. Mr. Satyaprakash Sharma for respondent no.2.
----
CORAM : K. R. SHRIRAM &
A. S. DOCTOR, JJ.
DATED : 9th NOVEMBER 2022 P.C. :
1 By consent, petition is taken up for final hearing at the admission stage itself.
2 Petitioner has impugned an order dated 26 th August 2019 passed by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai (WZB) (CESTAT) rejecting petitioner's application to recall its order dated 4th October 2016. This order dated 4 th October 2016 (the said order) came to be passed in Appeal No.C/85678 of 2015 filed by petitioner against an order dated 28th November 2014 passed by Commissioner of Customs (Import), ACC Mumbai. This order dated 4 th October 2016 of CESTAT was a common order passed in appeals filed by four parties including petitioner herein. The challenge in the appeal was to the classification and consequent rate of duty adopted by the Assessing Officer.
Gauri Gaekwad 2/8 411-WP-475-2020.doc 3 Against the said order dated 4 th October 2016, petitioner had preferred an appeal under Section 130E of the Customs Act, 1962 before the Apex Court. After the appeal was filed in the Apex Court, the other three parties whose appeals were listed alongwith petitioner's appeal, viz., M/s. Fortune Marketing Private Limited and other appellants filed a rectification of mistake application before CESTAT for rectifying the common order dated 4th October 2016. The rectification application was filed on the ground that CESTAT had not considered in the said order dated 4th October 2016, clarification that was issued by the Department of Electronics and Information Technology, Government of India though produced before CESTAT as also other materials like orders of first Appellate Authority on the same issue for subsequent periods. This rectification application of the other three parties was allowed by CESTAT on 13th December 2016 and the final order dated 4th October 2016 with respect to the said three applicants came to be recalled and the appeals were directed to be relisted for fresh hearing. Petitioner naturally was not a beneficiary of this order.
4 Subsequent to this development, petitioner filed an application before the Apex Court for bringing on record the rectification of mistake order dated 13th December 2016 passed by CESTAT. Subsequently, the Gauri Gaekwad 3/8 411-WP-475-2020.doc registry of the Apex Court also prepared an office report confirming the filing of this application. Petitioner had decided to file a rectification application to CESTAT. Hence, on 3rd March 2017 petitioner sought leave of the Apex Court to withdraw the appeal that it had preferred under Section 130E of the Customs Act, 1962. The Apex Court granted leave and civil appeal was dismissed as withdrawn.
5 Subsequent to this, petitioner filed an application before CESTAT for rectification of mistake. The said application came to be dismissed by an order dated 26th August 2019 which is impugned in this petition. According to CESTAT, by filing the appeal before the Apex Court petitioner has exhausted its remedy and withdrawal of the appeal subsequent to invoking the jurisdiction of the Apex Court to avail of a provision in law encoded for rectification of a mistake without express leave of the Court to do so was not permissible and, therefore, the application came to be dismissed.
6 Heard the counsels.
The order dated 4th October 2016 is a common order and if the application of three other applicants/appellants is allowed on the ground that certain documents placed on record have not been considered and those are not party specific documents, certainly that benefit, in our view, Gauri Gaekwad 4/8 411-WP-475-2020.doc should also be extended to petitioner in this case. 7 Another point is CESTAT, after hearing those appeals and considering the Government of India notification, has allowed those appeals in favour of other three parties. CESTAT took up the appeal filed by Fortune Marketing Pvt. Ltd. for final hearing (post the recall of the order dated 4th October 2016) and passed final order dated 4 th April 2017 allowing the appeals and deciding the issue in favour of Fortune Marketing Pvt. Ltd. The appeal filed by respondent no.2 before this Court against the final order dated 4th April 2017 in Fortune Marketing Pvt. Ltd. was dismissed on maintainability vide order dated 19th September 2018.
Before seeking leave of the Apex Court to withdraw the appeal, petitioner had filed in the Apex Court an application to bring on record the order passed by CESTAT on the rectification application filed by Fortune Marketing Pvt. Ltd. and others allowing the same. This is evident from the Apex Court's office report dated 2nd March 2017 in respect of petitioner's case.
8 We have considered the order of the Apex Court where ofcourse there is no specific express leave being granted. Mr. Mishra submitted that there are plethora of judgments discussing the doctrine of merger because having filed the appeal under Section 130E of the Customs Gauri Gaekwad 5/8 411-WP-475-2020.doc Act, 1962, the order allowing withdrawal of the appeal would mean that the said order has merged with the order passed by CESTAT. Therefore, CESTAT was correct in rejecting the application. Mr. Sridharan submitted otherwise and relied upon various judgments including a judgment of the Apex Court in State of Kerala and Anr. V/s. Kondottyparambanmoosa and Ors1.
9 Per contra, Mr. Mishra relied upon a judgment of the Apex Court in Omprakash Verma and Ors. V/s. State of Andhra Pradesh and Ors. 2 to submit that doctrine of merger was applicable and he bought to the attention of the Court paragraph 73 and 74 of the said judgment. In our view, this judgment is not applicable in as much as in Omprakash Verma (supra), the Apex Court has observed that once the appeal of the State has been allowed, the net result would be that the High Court's judgment which held that the proceedings under the ULC Act were vitiated, stood merged in the decision of the Apex Court in State of A.P. V/s. N. Audikesava Reddy3.
In the case at hand (a) it is a statutory appeal and (b) no leave was granted or any order of admission was passed. 10 Mr. Mishra also relied upon judgment of the Apex Court in Pernod Ricard India Pvt. Ltd. V/s. Commissioner of Customs 4. In the said
1. (2008) 8 SCC 65
2. (2010) 13 SCC 158
3. (2002) 1 SCC 227
4. (2010) 8 SCC 313 Gauri Gaekwad 6/8 411-WP-475-2020.doc judgment, the Apex Court has held that once a statutory right of appeal is invoked, dismissal of appeal by the Supreme Court, whether by a speaking order or non speaking order, the doctrine of merger does apply.
Again this judgment is not applicable in as much as in the case at hand, there was no order of dismissal of the statutory appeal. Petitioner wanted to withdraw the appeal and permission to withdraw the appeal was simplicitor granted.
11 Mr. Mishra also relied upon a judgment of the Apex Court in Sarguja Transport Service V/s. State Transport Appellate Tribunal, M.P. Gwalior and Ors5. Mr. Mishra submitted that in that case petitioner had withdrawn the petition from the High Court simplicitor and the Apex Court held that a fresh petition was not maintainable.
Again this judgment is not applicable to the facts of the case at hand because (a) that was a writ petition and not a statutory appeal and
(b) there the Court held that it was not maintainable on the grounds of res judicata. Court held, Res judicata would affect petitioner's remedy under Article 226 of the Constitution of India and may not bar other remedies. 12 Having heard the counsels, in the interest of justice, we are inclined to allow the petition and direct CESTAT to consider petitioner's rectification application. Reasons for us to arrive at this conclusion are as
5. (1987) 1 SCC 5 Gauri Gaekwad 7/8 411-WP-475-2020.doc under :
(a) the order dated 4th October 2016 has been a common order in which four appellants were heard including petitioner;
(b) rectification application of the remaining three appellants has been allowed;
(c) the reason for allowing the rectification application to those appellants is because CESTAT accepted that it had not considered the clarification issued by the Department of Electronics and Information Technology, Government of India though it was produced before CESTAT. Paragraph 3.1 of the said order dated 13th December 2016 allowing rectification application reads as under :
3.1. On careful consideration of the submissions made by both sides and perusal of our final order dated 04.10.2016, it is noticed that the clarification issued by Department of Electronics and Information Technology, GOI though produced before us escaped our attention while recording the order as also other materials like orders of first appellate authority on the same issue for for subsequent periods. The said clarification of the Department of Electronics and Information Technology, GOI and other materials may throw some light as to the classification of the products in question. We have also noticed that both sides have not argued on these points elaborately during the proceedings hence it may have escaped our attention.
As to the power of Tribunal to recall order once passed, Full Bench of Hon'ble High Court of Delhi in the case of Lachmandas Bhatia Hingwala vs. Asst. Commissioner of Income Tax - 2011 (121) DRJ 451, ruled that Tribunal has power to recall its order if some facts are not considered.
(d) subsequently the appeals by Fortune Marketing Pvt. Ltd. and two others (three appeals) have been allowed by CESTAT. Only petitioner is left out.
(e) the orders passed in the rectification applications by CESTAT were also filed by petitioner in the Apex Court.
Gauri Gaekwad
8/8 411-WP-475-2020.doc
(f) the doctrine of merger, in our opinion, would not apply in this case. This is because the Apex Court while permitting leave to withdraw the appeal has not passed any order on merits. The appeal had not even been admitted. The order of the Apex Court is also not an order rejecting the appeal and, therefore, the said order cannot be said to be an order of affirmance of the order of CESTAT. That being the position, in our view, the doctrine of merger cannot be applied to the facts and circumstances of this case.
(g) gross injustice would be caused to petitioner if this petition is not allowed.
13 In the circumstances, we set aside the impugned order dated 26th August 2019 and direct CESTAT to consider petitioner's appeal on merits once again. The Appeal No.C/85678 of 2015 be heard and disposed preferably within twelve weeks.
14 Petition disposed.
(A. S. DOCTOR, J.) (K. R. SHRIRAM, J.) Gauri Gaekwad