Customs, Excise and Gold Tribunal - Delhi
Dinkar Khindria vs Collector Of Customs on 29 March, 2000
Equivalent citations: 2002(83)ECC875, 2001(135)ELT610(TRI-DEL)
ORDER Lajja Ram, Member (T)
1. While hearing the two appeals filed by (1) Shri Dinkar Khindria and (2) Shri Dinesh Khindria (against the common order-in-original, dated 17-8-1993 passed by the Collector of Customs, New Delhi), the following question has been referred by the Bench to the Larger Bench :
"Whether the Mohit Thakor's case as reported in 1994 (72) E.L.T. 865 is required to be recalled.
AND the appeal of Mohit Thakor (No. C/1036/93 NRB decided by Final Order No. A/458/1994 NRB dated 6-5-1994) is required to be reheard along with these appeals as all the cases arise from the same facts and decided by a common adjudication order and as vital questions of law and fact have not been answered in Mohit Thakor's order."
Under his common order-in-original, dated 17-8-1993, the Collector of Customs, New Delhi had absolutely confiscated two kgs. of foreign marked gold, which had been seized from Shri Dinesh Khindria. Two Kgs. of foreign marked gold brought by Mohit Thakor, a passenger coming from abroad, which was sought to be cleared through Dinkar Khindria, another passenger coming from abroad, was also absolutely confiscated. Penalty of Rs. 15,000/- was imposed each on Dinkar Khindria, Mohit Thakor and Dinesh Khindria.
The appeal filed by Shri Mohit Thakor with regard to his part in the above mentioned common order-in-original, dated 17-8-1993 came-up before the Tribunal in Appeal No. C/1036/93-NRB, and under Order, dated 6-5-1994 the Tribunal held that absolute confiscation of the two Kgs. of foreign marked gold brought by Shri Mohit Thakor (which was sought to be cleared through Dinkar Khindria) was not justified. The said two Kgs. foreign marked gold was allowed to be redeemed on payment of a redemption fine of Rs. 25,000/-.
The amount of penalty imposed on Shri Mohit Thakor, the appellant in that case before the Tribunal, was reduced from Rs. 15,000/- to Rs. 5,000/-.
The appeals filed by Shri Dinkar Khindria and Shri Dinesh Khindria against the same order-in-original, dated 17-08-93 came-up separately before the Tribunal by way of Appeal Nos. C/1053-1054/93-NB. The Bench observed that the earlier appeal No. C/1036/93 NRB filed by Shri Mohit Thakor and the two appeals bearing Nos. C/1053-1054/93-NB filed by Shri Dinkar Khindria and Shri Dinesh Khindria arose out of the common order-in-original, dated 17-08-93 and should have been heard together. Certain observations were made with regard to the merits of the decision recorded in the appeal of Shri Mohit Thakor as reported in 1994 (72) E.L.T. 865 (Tribunal). It was remarked that vital questions of law and fact have not been answered in Shri Mohit Thakor's case.
It was proposed that the Tribunal's aforesaid decision be recalled and re-heard along with the appeals filed by Shri Dinkar Khindria and Shri Dinesh Khindria.
2. The matter was heard by the Larger Bench on 28-2-2000 when Shri Dveep Ahuja, Advocate submitted that the order in the case of Shri Mohit Thakor be recalled as it was passed without hearing the present appellants whose interests had been affected by that order. By not hearing the present appellants, mistake has crept in that order, which needs to be rectified. He pleaded that the order passed by the Tribunal could be recalled as held by the Tribunal in LML Ltd. v. CCE -1989 (41) E.L.T. 534 (Tribunal).
In reply Shri Sanjeev Srivastava, JDR submitted that there was no mistake apparent from the record for rectification in the Tribunal's decision in the case of Mohit Thakor; no application for rectification of mistake has been filed by the Commissioner of Customs or Mohit Thakor, and that hearing of the appeal filed by Shri Mohit Thakor separately could not be considered as a mistake apparent from the record. He relied upon the Supreme Court's decision in the case of Dwarka Das v. State of Madhya Pradesh - AIR 1999 (SC) 1031.
3. We have carefully considered the reference and have perused the orders recorded by Member (J), Shri S.L. Peeran, by Member (T), Shri J.H. Joglekar, and the order recorded by Member (J), Smt. Archana Wadhawa on the difference of opinion between the members of the original bench. On the ground that there was apparent mistake in the earlier order, dated 6.5.94 in the case of Mohit Thakor v. Collector of Customs, New Delhi - 1994 (72) E.L.T. 865 (Tribunal), Member (J), Shri S.L. Peeran (with whom Smt. Archana Wadhwa, Member (J) concurred), had proposed that the said order in the case of Mohit Thakor required to be recalled. The grounds on which it was concluded that there was apparent mistake in the said order were that the Tribunal :-
(i) had not stated the entire facts of the case,
(ii) had not dealt with the question of ownership of the gold seized and had not considered the plea of Dinkar Khindria, one of the appellants in the present proceedings, and
(iii) had not considered the evidence on record along with the facts of retraction of the statements by the persons involved in common proceedings.
4. Under Section 129B(2) of the Act, the appellate Tribunal may, at any time within four years from the date of the order with a view to rectify any mistake apparent from the record, amend any order passed by it under Sub-section (I) of Section 129(B). Such amendments could be made if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal.
5. The power of rectification of mistake under Section 129(B) of the Act is a limited power and this power is restricted to rectification of the mistakes apparent from the record calling for amendment of the order. "Rectification" means "taking out mistakes from". A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points, on which there may conceivably be two opinions (refer Supreme Court's decision in the case of S. Bahrain, Income Tax Officer Company Circle IV, Bombay v. Volkart Brothers and Ors. - AIR 1971 (SC) 2204 (SC).
A decision on a debatable point of law or facts is not a mistake apparent from the record and the debatable issue could not be the subject of an order of rectification. Rectification of mistake does not envisage the rectification of an alleged error of judgment.
Rectification of mistake is by no means an appeal in disguise whereby an order even if it is not valid, is re-heard and re-decided. Rectification of mistake application lies only for patent mistake. Only in a case where the mistake stores one in the face and there could reasonably be no two opinions entertained about it, a case for rectification of mistake could be made out. The Hon'ble Supreme Court in para-11 of their judgment in the case of Thungabhadra Industries Ltd. v. Government of Andhra Pradesh represented by the Dy. Commissioner - AIR 1964 (SC) 1372 had held as under :-
"(11) What, however, we are now concerned with is whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an "error apparent on the mce of the record". The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A reveiw is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares on in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. No questions of fact were involved in the decision of the High Court in T.R. Cs 75 to 77 of 1956. The entire controversy turned on the proper interpretation of R. 18 (1) of the Turnover and Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of Feb., 1956; nor could it be doubted or disputed that these were substantial questions of law. In the circumstances therefore, the submission of the appellant that the order of September, 1959 was vitiated by "error apparent" of the kind envisaged by Order XLVII, Rule 1, Civil Procedure Code when it stated that "no substantial question of law arose" appears to us to be clearly well founded. Indeed, ld. Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error."
Thus, Section 129B(2) of the Act does not envisage the rectification of an alleged error of judgment.
6. The departmental representative has referred to the Supreme Court's decision in the case of Dwarka Das v. State of Madhya Pradesh and Anr. - AIR 1999 (SC) 1031 wherein the Supreme Court with regard to Section 152 of the Code of Civil Procedure 1908 had elucidiated the scope of rectification of mistake in the following terms :-
6. Section 152 C.P.C. provides for correction of clerical or arithmetical mistakes in judgment decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistake which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial Court had specifically held the respondents State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant in so far as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial Court while order dated 30th November, 1973. The High Court was, therefore, justified in setting aside the aforesiad order by accepting the revision petition filed by the State.
Section 152 of the Code of Civil Procedure 1908 reads as under :-
"Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the applicant or any of the authorities."
Although Section 152 of the Code of Civil Procedure was not couched in similar terms as Section 129B(2) of the Act, reference with regard to the settled position of law is of general application.
7. The order recorded in the case of Mohit Thakor was not an ex parte order. It was also nobody's case that the decision was obtained by fraud or deceit.
8. No mistake as such could be alleged in proceeding with the matters as they are taken-up for hearing by the Bench. The decision in each case has to turn on the evidence let in it.
In the case of Karan Singh v. State of Madhya Pradesh - AIR 1965 (SC) 1037, the Hon'ble Supreme Court had held that "each case has to be decided on the evidence led in and this irrespective of any view of the same that might have been taken on different evidence led in another case."
9. On careful consideration of the matter, we hold that a decision which has been validly made by a duly constituted Bench is not open for review on the alleged ground that according to the applicants the decision was erroneous on fact or law. In any case, the Tribunal has no power to review its orders.
This Tribunal is a creation of the statute. Only the powers conferred under the statute, which created it, can be exercised. It has no inherent powers as are available with courts established under the Constitution or Codes of Civil Procedure or Criminal Procedure. This Tribunal under no circumstance can recall an order passed or issued. Under the cover of "rectification of mistake" this Tribunal cannot exercise any power to recall an order validly passed.
10. The observations of the Bench hearing separate appeals (although arising out of the same order-in-original) that the Bench was in disagreement of the order passed in the case of Mohit Thakor were against judicial propriety. Considerations of judicial propriety require that a coordinate Bench should not sit over judgment on the order recorded by another Bench. In our view the observations of the Bench, on the propriety of the decision in the case of Mohit Thakor were un-called for.
11. Accordingly, there is no question of recalling the Tribunal's order in the case of Mohit Thakor v.C. C., New Delhi -1994 (72) E.L.T. 865, and the appeals bearing Nos. C/1053-1054/93-NB filed by Dinkar Khindria and Dinesh Khindria are to be decided on the basis of the evidence led in those cases.
12. While Member (T) had recorded the orders on merits, neither Member (J), Shri S.L. Peeran, who was on the original Bench nor Smt, Archana Wadhwa, Member (J), who recorded the orders in difference of opinion, had gone into the merits of the case. We consider that it would be in the interest of justice if both these appeals are now heard by the regular Bench after proper notice to the appellants and the Revenue. We order accordingly.
Both the appeals be now posted before the regular Bench. The reference is disposed of in the above terms.