Gujarat High Court
Rpg Life Sciences Ltd. vs Union Of India (Uoi) on 5 April, 2005
Equivalent citations: 2005(187)ELT433(GUJ), [2006]144STC267(GUJ)
JUDGMENT D.A. Mehta, J.
1. This petition under Article 226 of the Constitution challenges Tribunal's final order dated 12th September, 1996 and miscellaneous order dated 30th September,2004. Heard Mr. Paresh M. Dave, learned Advocate for the petitioner and Mr. Jitendra Malkan appearing on behalf of the respondents. In light of the view that the Court proposes to take up the matter, the matter is taken up for final hearing and disposal today. Rule. Mr. Malkan waives service of Rule.
2. The petitioner, a Limited Company, is carrying on business of manufacture of medicines. The dispute between the parties relates to levy of duty on physicians' samples of patent or proprietary medicines manufactured by the petitioner. It is not necessary for the purpose of the present petition to enter into any discussion on merits of the said aspect of the matter.
3. It appears that pursuant to different show cause notices the Additional Collector passed an Order-In-Original confirming demand of Rs. 1,96,313/- on physicians' samples. The petitioner's appeal before the Customs, Excise, And Gold (Control) Appellate Tribunal, failed when the impugned order dated 12th September, 1996 came to be made by the Tribunal.
4. It is the case of the petitioner that when the Tribunal decided the matter this High Court had already decided the issue on merits in favour of the petitioner and hence, the Tribunal was required to adjudicate the same in favour of the petitioner by quashing the Order-In-Original. After the Tribunal decided the appeal on 12th September, 1996 the petitioner came to know that the decision of this Court had already been confirmed by the Apex Court on 8th April, 1996, but the decision of the Apex Court was reported subsequently in 1999(107) E.L.T.579 (S.C.) (Union of India v. Suhrid Geigy Ltd.). The petitioner therefore applied for rectification of mistake to the Tribunal vide application dated 24th August, 1999. The Tribunal by its impugned order dated 30th September ,2004 has rejected the said application.
5. The reasons which have weighed with the Tribunal while rejecting rectification application are; (i) that Larger Bench of the Tribunal in case of Gujarat State Fertilizers & Chemicals v. Commissioner of Central Excise, Vadodara had decided that a subsequent order is not a ground for reopening a concluded proceeding and passing fresh order; (ii) Since the representative who appeared in rectification proceedings before the Tribunal had not participated in earlier proceedings the submission that the Tribunal had not considered all issues raised before it could not be considered.
6. The legal position as to the effect of decision of Apex Court or a decision of the jurisdictional High Court is well settled and needs no elaboration. In the case of Suhrid Geigy Ltd. v. Commissioner of Surtax (1999) 237 ITR 834, this Court has laid down as under:
"Section 13 of the Companies (Profits) Surtax Act, 1964, provides for rectification of mistake apparent from the record. A point which is debatable cannot be termed a mistake. But when the point is covered by a decision of the Supreme Court or concerned High Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point and it also ceases to be a point requiring elaborate arguments or detailed investigation/inquiry. The subsequent decisions of the jurisdictional High Court do not enact the law but declare the law as it always was".
This ratio has been reiterated in the case of Assistant Commissioner of Income Tax v. Saurashtra Kutch Stock Exchange Ltd. (2003) 262 ITR 146. The latter decision also lays down the law as regards the scope and powers of Appellate Tribunal to rectify mistakes in its order.
7. In the circumstances, it was incumbent upon the Tribunal to take into consideration the Apex Court's decision to which its attention was invited in the rectification proceedings. The case of the petitioner is more sound considering the fact that the decision of the Apex Court had already been pronounced on the day when the Tribunal decided the appeal, but due to inadvertence only the decision of the High Court had been pointed out and the petitioner invited attention to the decision of the Apex Court at a subsequent stage only because the decision was published later in point of time. The Tribunal could not have overlooked the settled legal position and was bound to carry out the rectification considering the ratio of the decision of the jurisdictional High Court as well as the Apex Court.
8. The second reason advanced by the Tribunal is no reason at all. The Tribunal should not lose sight of the fact that matters cannot be decided on the basis of personalities appearing before it. If the Tribunal had omitted to take into consideration the issues/grounds raised before it, it was of no consequence as to whether the original appeal was conducted by one representative and the petitioner was represented by another person in rectification proceedings. The reason assigned by the Tribunal can only be a ground for rejecting an application in case any fact or averment which is relatable to personal knowledge of the representative is averred in the rectification proceedings. The present is not such a case. The petitioner, through its representative, had merely invited attention of the Tribunal to the fact that it had failed to render any decision on merits of the controversy between the parties. The Tribunal could not have shut out the case of the petitioner on flimsy ground that the representative before it in rectification proceedings did not take part in earlier proceedings.
9. In the result, impugned order dated 30th September, 2004 (Annexure-K) is hereby quashed and set aside. The Tribunal shall take up for consideration the Rectification of Mistake application moved by the petitioner before it and decide the controversy after giving adequate opportunity of hearing to both the sides bearing in mind the settled legal position. The parties are directed to approach the Tribunal on 25th April, 2005 when the Tribunal shall fix up a date of hearing of the rectification application. The petition is accordingly allowed to the aforesaid extent. Rule made absolute. There shall be no order as to costs.