Customs, Excise and Gold Tribunal - Delhi
Tata Iron And Steel Co. Ltd. vs Collector Of Customs on 25 January, 1993
Equivalent citations: 1993ECR380(TRI.-DELHI), 1993(67)ELT892(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. The appellants have filed this ROM application dated 12-4-1991 in which they have submitted that the case was posted for hearing on 12-12-1990 and that they had initially entrusted the brief to M/s. J.B. Dadachanji & Co., New Delhi for conducting the same in this Tribunal.
2. Accordingly, Ms. Amrita Mitra, Advocate of the said Company, appeared for hearing on that date and sought adjournment on the ground of non-receipt of relevant papers and complete instructions from the appellants. They have contended that they, in the meantime, entrusted the case to another Advocate and hence the relevant papers could not be sent to Ms. Amrita Mitra in connection with the hearing fixed on 12-12-1990. The hearing of the appeal on that date was adjourned to 17-12-1990 with the observations that further adjournment would not be granted and that there was a delay of 2 days in filing the appeal. It is also stated that the learned Advocate, Ms. Amrita Mitra did not communicate the above observation of the Tribunal to them. It is further stated that in view of paucity of time, they advised their representative at Delhi, Shri A.N. Bhattacharya, Consultant to represent them and take an adjournment. They have stated that no authorisation could, however, be issued by the appellants in Calcutta in favour of Shri A.N. Bhattacharya in Delhi owing to shortage of time. They have contended that some mistake has crept in as is apparent from the records due to communication gap as could be evident from the facts narrated by them and hence they have asked for rectification of the mistake under Section 129B(2) of the Customs Act, 1962 and grant them a chance to represent their case in personal hearing, for which a date may be ordered to be fixed. They have also filed an application for condonation of delay of 2 days in filing their appeal and have asked for condonation of the same and to hear the appeal finally.
3. The matter came up for hearing on 21-6-1991. Shri N. Mookherjee, learned Advocate made his submissions and sought time to file additional application in support of the appellants case. The same was granted and the case was heard on 5-7-1991 on which date, the appellants filed their further submissions in writing. It is stated in this written submission that the appellants contacted Shri N. Mookherjee to appear at the hearing and to seek adjournment. Accordingly, an express telegram was sent by the appellants requesting for postponement from 12-12-1990. Post copy of the telegram was also despatched to the Tribunal and in the case of hearing on 21-6-1991, it revealed that the telegram was not received and not placed on record, but the post copy of the telegram was available on 17-12-1991. It is stated that Ms. Mitra, learned advocate appeared on 12-12-1990 and informed non-receipt of records. The Tribunal fixed the date of hearing on 17-12-1990 stipulating that no further adjournment would be granted. They contended that when M/s. J.B. Dadachanji & Co. asked for records from the appellants, it was informed that Mr. Mookherjee, Advocate had been briefed. Accordingly, the appellants contacted Mr. Mookherjee who contacted Shri A.N. Bhattacharya, consultant at Delhi to appear before the Tribunal and seek adjournment. It is also stated that on 17-12-1990 Ms. Mitra from M/s. J.B. Dadachanji Co. was present in the Court but when the matter was called, she was not present. Shri A.N. Bhattacharya, consultant informed that he had been asked over the telephone by Shri Mookherjee, advocate to seek adjournment. The Tribunal did not accede to the request of adjournment in the absence of authority (Vakalatnama) in favour of Sh. Bhattacharya and proceeded to dispose of the appeal on merits on the preliminary question of delay of 2 days in filing the appeal and in the absence of application for condonation of delay. The Tribunal has held that there was delay of 2 days in filing the appeal and hence on that ground, dismissed the appeal as time-barred under Section 129A(3) of the Customs Act, 1962.
4. The appellants have further stated that they were not aware of the order of the Tribunal passed on 12-12-1990 directing them to file application for condonation of delay and hence they could not file the said application giving the reasons for the delay of 2 days. They contended that for the lapse on the part of Ms. Mitra, they should not be penalised. They contended that the matter has been posted by the Tribunal ex parte on the ground of absence of any application for condonation of delay. The appellants could not advance its defence on the question of delay in filing the appeal. They further submitted that Ms. Mitra, advocate's appearance on 12-12-1990 was on some misunderstanding and that on 17-12-1990, she did not appear for hearing although she attended the Tribunal. They contended that the Tribunal had refused to accede to the request of Mr. Bhattacharya, consultant for adjournment as he did not file the authority (Vakalatnama). They contended that it is evident from record that the advocate who appeared on 12-12-1990, did not represent the party and hence the matter was disposed of ex parte. They contended that from records, it is clear that the postponement of hearing on 12-12-1990 was sought by the appellants on account of non-availability of advocate. But misunderstanding had been raised in the mind of the Tribunal due to appearance of Ms. Mitra on 12-12-1990. They contended that had the express telegram praying for postponement of hearing for 12-12-1990 was placed on record on 12-12-1990 itself, then the matter would have taken a different shape altogether. They contended that the following facts would reveal the mistake apparent from the record -
"(a) Express telegram praying postponement was not on record on 12-12-1990;
(b) Ms. Mitra, Advocate, appeared on 12-12-1990 and prayed for postponement due to mis-understanding;
(c) On 17-12-1990, Ms. Mitra though was present in the Court, was not available when the matter was called;
(d) Post copy of the telegram praying postponement of hearing on 12-12-1990 was available on 17-12-1990;
(e) Mr. A.N. Bhattacharya, Consultant appeared on 17-12-1990 and prayed for postponement;
(f) that there was delay in receipt of the appeal in the Tribunal was not known to the appellant; and
(g) The appeal has been dismissed for want of application for condonation of delay."
They contended that the appellants are victim of circumstances and due to the fault of Ms. Mitra, Advocate. They contended that they would suffer, if the Tribunal did not rectify the mistake. Had the Tribunal postponed the hearing on 17-12-1990, it was possible for the appellants to submit the application for condonation. They contended that the Tribunal decided the case ex-parte despite the prayer made by the appellants through Mr. Bhattacharya, Consultant. The appellants could not get an opportunity to defend on the issue of delayed receipt of appeal petition and thus there was denial of natural justice. They contended that in terms of Section 112B(2), the Tribunal may rectify the mistake apparent from the record and they have prayed accordingly.
5. Shri Mookherjee, learned Advocate appearing for the appellants, made his submissions in terms of the application and written submissions filed by him and strongly urged the Bench to rectify the mistake apparent on record by recalling the order and granting the appellants an opportunity to explain the delay of 2 days caused in filing the appeal. It is his contention that the Bench, while considering the request of Ms. Mitra for adjournment, should have granted a longer date of hearing to enable her to make the necessary application for condonation of delay, as had been pointed out by the Bench which is recorded in the order sheet. He contended that the appellants, being in Calcutta, it would not have been possible to get the application within a matter of 5 days. He further contended that Ms. Mitra having withdrawn from the case and a new Consultant requiring Vakalatnama, could seek adjournment to carry out the direction of the Bench and, therefore, he should have been given the opportunity to file his authority and also to file the application for condonation of delay. The Bench proceeded to pass the order for dismissal on the ground of delay without granting opportunity to the appellants, has resulted in failure of principles of natural justice and that it is a settled law that where there is a violation of principles of natural justice; then the Tribunal had power to recall its order and rehear the matter. He further submitted that the appellants were under the bona fide belief that there was no delay in filing the appeal as they had forwarded the appeal by post on 18-12-1989 and the same was received in the Tribunal on 22-12-1989. They received the notice of hearing on 27-11-1989 to appear for hearing on 12-12-1990. In this notice of hearing, the Registry had not indicated that there was a delay of 2 days and, therefore, they could not note about such a delay to enable them to file the condonation application. They contended that they sent a telegram seeking adjournment and the copy of the telegram was also sent by post and the postal copy of the telegram indicated the name of Shri N. Mookherjee to whom the copy of the said telegram had been sent. He contended that had this telegram alone been placed before the Bench on 12-12-1990, the Bench would have given a longer date with the direction to file the COD as is the normal practice. However, due to communication gap, Ms. Mitra had appeared before the Tribunal and had sought time on the ground of non-receipt of the papers. The Bench had pointed out the delay for which she agreed to do the needful. It is his case that Ms. Mitra did not communicate about the delay part of the appeal but however, admitted that she informed about the adjournment to 17-12-1990. The said information was received on 16-12-1990 in the afternoon and he immediately requested Shri Bhattacharya to appear and seek adjournment. Ms. Mitra was in the Court but as Shri Bhattacharya came, she withdrew from the Court. It is his case that the fault lies with the registry in not informing the delay which was there in the appeal and as the appellants were under the bona fide belief that there was no delay in the case, could not pursue the matter, therefore, the order of dismissal on delay was an error apparent on record and violation of principles of natural justice.
6. Shri L.C. Chakravarti, DR appearing for the Revenue, stated that in this rectification of mistake, the appellants were seeking the restoration of appeal which is not contemplated in law and the relevant Section 129B(2) of the Customs Act is not attracted in the present case. He submitted that in the garb of rectification of mistake, restoration proceedings cannot be initiated. He submitted that there is no mistake apparent on record and the Tribunal had passed the correct order which did not require any rectification. The mistake will always be relatable to 'record' and if that record had not been looked into or omitted. In the present case, the Tribunal had not called for rectification. He further contended that in the rectification of mistake proceedings, only the mistake would be rectified and the Tribunal could not recall the order and to give fresh hearing to the appellants. He relied on the ruling rendered in the case of Heilgers Ltd., Calcutta v. Collector of Customs, Calcutta [1985 (19) E.L.T. 467 (Tribunal)] wherein it was held that the dismissal of appeal under Rule 20 of CEGAT (Procedure) Rules, 1982, would be correct in law and there is no provision under the Customs Act which could authorise the Court to review its own order. It is held that only mistake can be rectified under Sub-section (2) of Section 129B of the Customs Act and that there was no mistake in the order, the same having been disposed of on merits.
7. We have carefully considered the submissions made by both the sides and perused the written ROM as well as the submissions made in writing which are all recorded in detail (supra). The question that arises in this application is whether the ROM is maintainable when the appeal was dismissed by the Bench on the ground of appellants not having filed application for condonation of delay and appeal having been dismissed as time-bar under Section 129B(3) of the Customs Act, 1962. The plea of the appellants and the counsel by his written submissions have been noted above. Although there is contradiction in the application and the submissions but the main submission of the appellants, as can be gathered is that the appellants were not aware of the delay in the appeal and were under the bona fide belief that the appeal had been filed in time. There contention is that on the first date of hearing, when the appeal came up for hearing on 12-12-1990 for the first time, the Counsel had requested for adjournment on the ground that they have not received the papers. The Bench had considered this and had also pointed out the two days delay for which the Counsel had requested for time. The appellants are making the ground that the time granted of 5 days was not at all sufficient to carry out the Bench's order, more particularly, in getting an application for condonation of delay from Calcutta. Their submission is that once the Bench accepted the prayer for adjournment, a reasonable time should be granted so that the Bench's directions could be carried out and that should not be a formality. If that be so, it is violation of principles of natural justice and the order would be liable for recalling. The matter came up for hearing on 17-12-1990. On that date, there appears to be some confusion in as much as, Ms. Mitra was in the Court and not appeared and Shri Bhattacharya, Consultant seeking the adjournment. The Bench preferred to dismiss the appeal on the point of limitation under Section 129A(3) of the Customs Act, 1962. The appellants had brought out in detail how the communication gap had appeared and how it became very difficult for them to entrust with vakalatnama or COD application in a short time of few hours as the facts of the case shows. They came to know about the hearing on 17-12-1990 only on the afternoon of 16th December, 1990. The appellants contend that they could not contact Shri Bhattacharya who represented their case, to seek adjournment. Here again the same plea of violation of principles of natural justice has been put forward. Therefore, they contend that from the facts and circumstances of the case, a reasonable opportunity should have been given to the party to comply with the orders of the Bench and not placed them in such a situation as would have become impossible for them to carry out the direction of the Bench in the normal course.
8. On a perusal of the entire records, this plea is well founded. The notice of hearing which has been sent did not indicate about the delay in the filing of appeal as can be seen by us. The appeal had come up for hearing for the first time and as in the normal practice, the adjournments are granted when both the sides state that records are not available with them. It is also the general practice that reasonable time is granted if the records have to come from far off places either in the case of assessee or the Department. The delay in filing of the appeal had been brought to the notice of the Bench by the Court Officer. The counsel had also requested for adjournment to do the needful. It follows that the Bench had indeed accepted the request for adjournment. Now, the question is as to what extent of time limit, that should be granted in an adjournment and date to be fixed for carrying out the direction. The grant of adjournment as contended, is indeed, not a formality, as it is now well settled that when the Court gives any direction, it should give reasonable and sufficient time to the appellants to comply with the direction. It is very clear on record that the grant of 5 days time to do the needful of filing the application of condonation of delay, in this particular case, was not sufficient, as the counsel had to get it from Calcutta, which was a very long distance. The appellants have a choice to change their counsel as has happened in this case. The consultant had appeared and so also the advocate on record. It is quite natural for an advocate to withdraw, if another advocate appears in the Court and states that he has been instructed to appear in the case. However, such withdrawals are to be granted by the Bench only on being satisfied that the advocate on record, had no objection and the new advocate files the power of authority on his behalf. Apparently, this was not the case. Ms. Mitra, Advocate could have appeared when the case was called and could have sorted out the position but however, she has thought it best to withdraw from the hearing. The question is as to whether the Bench could grant the audience to the new consultant who did not have any Vakalatnama. The grant of adjournment is a discretionary power of the Tribunal. However, on a justifiable ground, the Tribunal can exercise its right in granting the adjournment to enable the Counsel with or without Vakalatnama to do the needful. However, in this case, the Bench had not granted audience to Shri Bhattacharya, Consultant but has proceeded to decide the case on COD application not having been filed despite the same having been brought to the notice of Ms. Mitra on 12-12-1990. Sh. Mookherjee has pleaded that this order of the Tribunal rejecting the prayer for adjournment and proceeding to decide the delay in filing the appeal has resulted in failure of natural justice and indeed, the Tribunal have all the powers in the interest of justice to recall such orders and grant relief. It is his case that the order of the Tribunal is in the nature of mistake apparent on record in as much as, the Tribunal in not appreciating the difficulty faced by the appellants to do the needful, has resulted in failure of natural justice and it is mistake apparent on record calling for an order for recalling and hearing the appeal on merits. There is force in this submission. It has been held in the case of M/s. LML Ltd. v. Collector of Central Excise [1989 (41) E.L.T. 534] as follows :-
"In the case of Mangat Ram Kuthiala v. Commissioner of Income-tax (supra), it was observed by their Lordships that a judicial Tribunal can recall and quash its own order in exceptional and rare cases when it is shown that it was obtained by fraud or any palpable mistake or was made in utter ignorance of a statutory provision and the like. It was also observed therein that the Tribunal has inherent power to recall such an order, quash it and make an order on merits and according to law in the ends of justice. The provision in Section 35C(2) of the Central Excises and Salt Act, 1944 in similar to the provisions of Section 254(2) of the Income-tax Act, 1961. The ratio of these judgments under the Income-tax Act are applicable to the present case. The mistake in the present case is apparent on the face of the record and it goes to the root of the order. The error having come to the notice of the Tribunal, it must rectify the same by recalling the order and re-hear the matter on merits. An omission to rectify this mistake will cause serious prejudice to the interest of justice."
The above observation will apply to the facts of the case as the non-grant of adjournment has gone to the root of the matter in creating a difficult situation for the appellants to carry out the direction of the Bench and has resulted in violation of principles of natural justice.
9. The observation made by the Tribunal in the case of Kirtilal Kalidas Diamond Exporters v. Collector of Customs [1989 (44) E.L.T. 251 (Tribunal)] is also distinguishable. In this case, the appeal was dismissed on merits ex parte after service of notice to party and there was no request for adjournment. Therefore, it was held that such order was not recallable as no breach of natural justice had been involved.
10. The observations made in the above cases with regard to denial of principles of natural justice has been accepted by the Courts for recall of the orders. We are convinced that this case is one such which comes within the ambit of rectification of mistake on the failure of principles of natural justice.
11. A similar view has been taken by the Allahabad High Court in the case of Gopi Krishna Aggarwal v. Union of India 1992 (61) [1990 (25) ECC 412] wherein the Hon'ble Allahabad High Court has held that every authority has ancillary and incidental power to recall an order if it is satisfied that the absence of the appellants during the hearing was for reasons beyond the control of the appellants. In the present case, the appellants have given a convincing reason in not submitting the COD for two days delay. The operative part of the appeal has also not been communicated to the appellants in the notice of hearing by the Registry. It was only pointed out by the Court Officer when the appeal came up for hearing on 12-12-1990. Therefore, a reasonable opportunity should have been given to the appellants to carry out the said direction for filing the COD application giving sufficient reasons explaining the delay of two days. The Hon'ble Supreme Court's observation on delays as given in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. [1987 (28) E.L.T. 185] cannot be lost sight of.
12. In the facts and circumstances of the case, it is a fit case for allowing this application and for ordering for recalling the order of dismissal and directing the appeal to be placed for hearing for disposal as per law. Ordered accordingly.
N.K. Bajpai, Member (T)
13. I have seen the order written by Shri S.L. Peeran, Learned Member (Judicial) and I am unable to persuade myself to agree with his conclusions for the reasons stated below.
14. We have under consideration an application for rectification of mistake filed under Section 129B(2) of the Customs Act, 1962 which reads as under :-
"(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 Section (1) and shall make such amendments if this 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." [Emphasis supplied]
15. Shri Chakravarthy had argued during the hearing that since an application for rectification of mistake was under consideration of the Tribunal, it would be necessary for the Tribunal to see whether it was really a case of mistake apparent on the face of the record. Such a mistake has to be a mistake of the Tribunal and it did not appear that there was any such mistake in the present case. The fact that there was a delay of two days in the receipt of the appeal in the Tribunal was pointed out to Ms. Amrita Mitra, the appellants' counsel, who represented them during the hearing on 12-12-1990. It was for the counsel to take suitable steps to file an application for condonation of delay so that it could be argued on the next date of hearing. What was on record of the Tribunal was a Vakalatnama of the appellant company who had authorised Miss Amrita Mitra to represent them in this case. The Tribunal had not permitted Shri A.N. Bhattacharya to argue the matter on the 17-12-1990 in the absence of a Vakalatnama; the Vakalatnama filed by Ms. Amrita Mitra had not been withdrawn and was on record. She was also present in the Court in the morning but was not present when the case was called for hearing.
16. Shri Chakravarthy strongly contested Shri Mookherjee's point that Ms. Amrita Mitra who represented the appellants during the first hearing and neither informed him nor the appellants about two days' delay in the filing of the appeal necessitating filing of an application for condonation of delay. Further, Shri Chakravarthy submitted that no affidavit had been filed by Ms. Amrita Mitra to support this point and, therefore, no blame could be attached to her in the absence of any averment from her that it was she who had failed to inform the appellants about the delay. It is not necessary that the opportunity to explain the delay should be given only in a hearing notice. This can be done in the open Court which is what had been done in the present case during the first hearing.
17. The following averments have been made in the fresh rectification application dated 4-7-1991 filed by Shri Mookherjee :-
"The appellant submits that advocate Ms Mitra's appearance on 12-12-1990 was on some misunderstanding and that on 17-12-1990 she did not appear for hearing although she attended the Tribunal. The Tribunal refused to accede to the request of Mr. A.N. Bhattacharya, Consultant who sought postponement, as he was not armed with the authority. Nevertheless, it is evident from the record that the advocate who appeared on 12-12-1990 did not represent the party and hence, the matter was disposed of ex-parte."
"From record, it is clear that the postponement of hearing on 12-12-1990 was sought for by the appellant on account of non-availability of advocate. But misunderstanding had been raised in the minds of the Tribunal due to appearance of Ms. Mitra on 12-12-1990. Had the Express Telegram praying postponement of hearing on 12-12-1990 was available on record on 12-12-1990, the matter would have had taken different shape altogether."
18. I have carefully perused the case file and observe that a Vakalat-nama dated 12-12-1990 duly accepted by Ms. Amrita Mitra has been filed on behalf of the appellants. Ms. Mitra's presence is also recorded in the order sheet on 12-12-1990 in which the following order was recorded by the Hon'ble President who presided over the Bench on that day :
"At the request of the counsel, adjourned to Monday, the 17th instant (Dec. 1990). No further adjournment will be granted. No notice. (Delay of two days' has been pointed out to the counsel)."
19. It is clear from the facts on record that Miss Amrita Mitra had appeared during the hearing on 12-12-1990 after being duly authorised by the appellants. Her appearance could not, therefore, be attributed to any misunderstanding either on her part or on the part of the appellants. The fact that the appellants had sent a telegram requesting adjournment on 12-12-1990 on the ground of an Advocate not being available, cannot contradict the fact that Ms. Amrita Mitra had appeared before the Tribunal after being duly authorised by the appellants themselves. The following endorsement also appears on the post copy (of the Telegram) which is addressed to Shri N. Mook-herjee :
"CC Mr. N. Mookherjee, No. 2 Church Lane, Cal-I. This has reference to discussion Mr. R.N. Acharya of TRL had with you in the afternoon of 6-12-1990. Kindly do needful and confirm." [Emphasis supplied]
20. All that can be inferred on a reading of this endorsement is that on 6-12-1990, the appellants did not have an advocate and Shri R.N. Acharya held some discussions with Shri N. Mookherjee about the matter. But, in the face of a Vakalatnama dated 12-12-1990 filed in the Court by Ms. Amrita Mitra who appeared on that day, can it be said that what was stated in the endorsement in the post copy of the Telegram had not been superseded by the Vakalatnama dated 12-12-1990 filed in the court? In the face of all these facts which are very much on record, I find it difficult to accept that Ms. Mitra's appearance on 12-12-1990 was because of any misunderstanding. In fact, the application dated 11-12-1990 which she moved on behalf of the appellants gives the reason for seeking adjournment to be due to non-receipt of the relevant papers and complete instructions for conduct of the appeal. This itself contradicts Shri Mookherjee's claim that adjournment was sought by Ms. Mitra because of non-availability of advocate. In these circumstances, there is no error whatsoever on the record of the Tribunal to justify the rectification of any mistake.
21. I observe that what Shri Mookherjee is trying to do is to show that by giving a short adjournment, the Tribunal had violated the principles of natural justice. Secondly, he is laying blame at the door of Ms. Mitra for not having informed the appellants about the delay in filing the appeal. I do not think that he is entitled to do this without an affidavit being placed on record from her confirming that she had not informed the appellants about the delay in filing the appeal. The Tribunal is hearing appeals everyday and counsels are advancing numerous arguments during the hearings. If the fact which is on record in the order sheet of the Tribunal, "delay of two days' has been pointed out to the counsel" is also proposed to be disposed of in this manner by Shri Mookherjee, I do not know what sanctity can be attached to the recorded proceedings of the Tribunal. I do not think it will be doing justice to anyone to disregard matters of record just because another counsel chooses to dispute them without any basis. The whole procedure that the Tribunal is following would be set at naught if the type of pleas which Shri Mookherjee has taken are accepted. His clients may have very reasonable grounds for feeling aggrieved with the order dismissing the appeal as time-barred but he is not entitled to have his grievance redressed by way of an application for rectification of mistake.
22. Learned Brother Shri Peeran has cited certain decisions justifying his conclusion that in a case of mistake apparent on record, the Tribunal is fully competent to recall its own order. I have carefully seen all the 3 decisions cited by him. In L.M.L's case (supra), the Tribunal had come to the conclusion that there was a mistake in its order apparent from the record, while correcting the mistake if it had to recall its order, it was competent to do so. Such is not the case in the present proceedings and, therefore, the decision in L.M.L's case, to my mind, is not applicable. So far as the Tribunal's decision in Kirtilal Kalidas Diamond Exporter's case (supra) is concerned, it is fully applicable to the present case because, in my view, as I have shown from the facts stated above, there was no violation of the principles of natural justice in dismissing the appeal as time-barred. Ms. Amrita Mitra had appeared for the hearing on 12-12-1990 when she was informed by the Hon'ble President that there was a delay of two days in filing the appeal. This had put her on notice. In her application dated 11-12-1990 for adjournment there was no request for allowing long adjournment and she is the one who was present in the Court on 17-12-1990 although she was not available when the matter was called. We have also seen that there was a valid Vakalatnama filed by her which had not been superseded by any other Vakalatnama. When Shri A.N. Bhattacharya appeared on 17-12-1990, it was not his case that he was proxy counsel appearing on behalf of Ms. Mitra. Thus, there was no violation of principles of natural justice by giving a short adjournment which Ms. Mitra had accepted on 12-12-1990. She could have moved another application for adjournment on 17-12-1990 when she came to the Court because till then it was she who was authorised to represent the appellants. This also was not done. Thus, the decision in Kirtilal's case is, in my view, not distinguishable.
23. The next decision cited is that of Allahabad High Court in the case of Gopi Krishan Agarwal v. U.O.I.[1990 (25) ECC 412]. The Court held as under :
"By the Court having heard Shri A.P. Mathur learned Counsel appearing for the petitioner and Sri Shishir Kumar counsel appearing for the U.O.I, we are of the opinion that there are two alternatives before the petitioner at the present. The first is to move an application for recalling order before the appellate authority on the ground that he could not appear due to reasons beyond his control. Every authority has ancillary and incidental power to recall an order, if it is satisfied that the absence was for the reasons beyond the control of the applicant. Such an application has not been moved. The petitioner may, if so advised, move now before the appellate authority.
The other alternative is to file an appeal under Section 129 A of the Excise Act (sic).
For want we have stated above, we do not consider it a fit case for interference. The writ petition is rejected."
24. The appellant, in this case, has not moved an application for recalling the order before the Tribunal on the ground that he could not appear due to reasons beyond his control. What the appellant is seeking to do is to get the order of the Tribunal recalled through an application for rectification of mistake under Section 129B(2). The Allahabad High Court judgment does not, therefore, apply to the present case.
25. In view of the above, I propose an order dismissing the application for rectification of mistake.
Since there has been a difference of opinion between the two members, following points of difference arising from two orders is referred to the Hon'ble President in terms of Section 129C(5) of Customs Act, 1962.
1. In the facts and circumstances of the present case, is the application for ROM filed for the purpose of recalling the order by the appellants maintainable or not?
2. Is the application for ROM to be allowed on the ground of failure of principles of natural justice in as much as the appellant had not been informed about the delay of 2 days in filing appeal by the Registry and dismissal under Section 129A(3) of Customs Act for delay of 2 days is not proper and is rectifiable mistake?
OR There is no failure of principles of natural justice because the appellants' counsel was informed by the Bench during the first hearing that there was delay of two days in the filing of the appeal, and there is, therefore, no mistake apparent from the record justifying the recall of the order.
3. Has the dismissal resulted in failure of principle of natural justice in not permitting the consultant, by an adjournment to give an opportunity to file Vakalatnama and application for COD thereby calling for rectification of mistake as held by Hon'ble Member, (J) in his order at paras 8 to 12.
OR There was no denial of principles of natural justice in refusing to grant adjournment to the learned consultant because he was not holding any Vakalatnama authorising him to appear, opportunity to file COD having been given on 12-12-1990, and dismissal of the appeal as time-barred under Section 129A(3) was proper as held by Member, (Technical) in his order in Paras 17 to 21.
G.P. Agarwal, Member (J)
26. The aforesaid points of difference have been referred to me by the Hon'ble President in terms of Sub-section (5) of Section 129C of the Customs Act, 1962.
27. When the case was called none appeared on behalf of the appellants and instead the appellants vide their letter dated 28-4-1992 (received in the Registry on 4th May, 1992) submitted that the matter be decided on the basis of evidence on record and in the circumstances the appellants will not attend the hearing. Accordingly, I perused the captioned application and the evidence on the record and heard the learned SDR, Shri L.C. Chakraborty.
28. It was contended by the learned SDR, Shri L.C. Chakraborty, that in the facts and circumstances of the present case, the captioned application for Rectification of Mistake filed for the purpose of recalling the Final Order No. 1441 /90-C, dated 17-12-1990 is not maintainable and alternatively it cannot also be allowed on the ground of alleged failure of principles of natural justice inasmuch as the appellants were informed about the delay of two days in filing the present appeal by the Bench itself on 12-12-1990. To support his submissions, he heavily relied upon the facts and circumstances of the present case and the law relating to it, as detailed out in the Order proposed by the learned Technical Member. He also took me through Paragraph 7 of the Order proposed by the learned Judicial Member and submitted that in this paragraph the learned Judicial Member has observed that, although there is contradiction in the application and the submissions made by the learned Counsel, but the main submission of the appellants as can be gathered is that the appellants were not aware of the delay in filing the appeal and were under the bona fide belief that the appeal had been filed in time. After stating so, the learned Judicial Member held that there was a failure of principles of natural justice, as in the notice of hearing issued to the appellants for 12-12-1990 there was no indication about the delay in filing the appeal and further that to grant five days time on 12-12-1990 to file the application for Condonation of Delay was not sufficient. It was his contention that this approach of the learned Judicial Member while dealing with the application for rectification of alleged mistake in the Order is not tenable in law. In other words, his submission was that while dealing with the application for rectification of alleged mistake in the Order under Sub-section (2) of Section 129B of the Customs Act, the Tribunal is not empowered to decide the question as to whether the adjournment given earlier in the case was sufficient or not, as no power to review to its own Order has been given to the Tribunal under the Act. The Tribunal being the creature of statute does not have powers of review and it is well settled that the power of review is not an inherent power and it must be conferred by law either specially or by necessary implication. In the Customs Act, 1962 there is no provision clothing the statutory Tribunal with power of review. The Tribunal Rules known as CEGAT (Procedure) Rules, 1982 also have not vested the Tribunal with any power of review and cited the case of Kirtilal Kalidas Diamond Exporters v. Collector of Customs [1989 (44) ELT 251] which was decided on the strength of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [AIR 1970 SC 1273]; Ram Chandra v. Beero Pollai [AIR 1936 Mad. 531 (FB)]; Sampu Gowda v. State of Mysore [AIR 1953 Mysore 156 (FB)] and; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya [AIR 1987 SC 2186]- In a nutshell, his submission was that the application be dismissed and the points of difference referred to me be answered accordingly.
29. Before I advert myself to the rival contentions raised by the parties, it may be stated, at the outset, that earlier, that is to say, on 31-1-1992 when the case was taken up for hearing, Shri N. Mookherjee learned counsel appeared on behalf of the appellants and submitted that on 12-12-1990, Ms. Amrita Mitra, advocate, appeared and the case was adjourned to 17th December, 1990 at her request and while adjourning the case she was informed by the Bench about the delay of two days in filing the appeal, but the appellants were not aware that on the said day the Tribunal directed Ms. Amrita Mitra to file an application for Condonation of Delay and under these circumstances, the appellants could not file any application for Condonation of Delay and since the appellants did not file the affidavit of Ms. Amrita Mitra to that effect at the time of the hearing of the present application before the Referring Bench, the learned Technical Member rejected the said contention of the appellants as there was no affidavit on the record of the said advocate to that effect and observed that "Secondly, he is laying blame at the door of Ms. Amrita Mitra for not having informed the appellants about the delay in filing the appeal. I do not think that he is entitled to do this without an affidavit being placed on record from her confirming that she had not informed the appellants about the delay in filing of the appeal.
30. To meet this situation he requested for adjournment to enable the appellants to file the affidavit of Ms. Amrita Mitra and for this purpose he requested four weeks' time. I, despite the opposition by the learned SDR in the interest of justice acceded to the said request of the learned Counsel and directed the Registry to list the case after four weeks under intimation to the parties. Accordingly, date 13-3-1992 was fixed for hearing. On that day the learned Counsel for the appellants Shri N. Mookherjee did not file any affidavit and requested for adjournment. Accordingly, the case was adjourned giving them more than three weeks time as requested. But when the case was taken up on the adjourned date neither any affidavit was filed by the appellants nor there was any further request for time to file the same and instead they, as aforesaid, requested vide their letter dated 28-4-1992 that the matter be decided on the basis of the evidence on record adding that in the circumstances the appellants will not attend the hearing.
31. On merits :- It is an indisputable fact on record that the present appeal was not filed in time and there was a delay of 2 days in filing the present appeal, and, therefore, it was mandatory for the appellants to seek condonation of such delay in filing the present appeal by showing the sufficient cause. Admittedly, the appellants did not move any application for condonation of delay nor in the Memorandum of Appeal requested for the condonation of the said delay. When the case was taken up for hearing on 12-12-1990 Ms. Amrita Mitra appeared on behalf of the appellants and the said delay of two days was pointed out to her by the Bench itself obviously to enable the appellants to file an application for condonation of delay, if so advised. Admittedly, they did not file any application for condonation of delay subsequently with the result that their appeal was dismissed as time-barred on 17-12-1990. The contention of the appellants that they were not aware that on 12-12-1990 the Tribunal apprised of the said delay to Ms. Amrita Mitra, Advocate, obviously to enable the appellants to file the application of condonation of delay is not borne out by any evidence on the record. The learned Technical Member in his proposed order also did not accept the said contention for want of any affidavit on record from her confirming that she did not inform the appellants about the said delay in filing the appeal. Even before me the said contention was raised on 31-1-1992 with a request that four weeks time be given to enable the appellants to file the affidavit of said Advocate, Ms. Amrita Mitra. Despite opposition by the other side as aforesaid I acceded to the said request of the learned Counsel in the interest of justice and gave four weeks time, but the said affidavit was never filed. Under these circumstances, the contention of the appellants that they were not informed about the said delay by Ms. Amrita Mitra, Advocate, cannot be accepted, and, therefore, there was no failure of principle of natural justice. The contention that since the said delay of two days in filing the appeal was not informed by the Registry, there was a failure of principle of natural justice has also no substance. Under the CEGAT (Procedure) Rules, 1982 no such duty is cast upon the Registry. On the other hand, Sub-rule 8(1) of Rule 18 of the CEGAT (Procedure) Rules provides for the issuance of notice of hearing to the appellants making it clear in its Sub-rule (2) that "The issue of the notice referred to in Sub-rule (1) shall not by itself be deemed to mean that the appeal or application has been admitted." Though, in all fairness to the appellants it may be stated that in the normal course such defect, if any, is pointed out to the parties in the notice of hearing. But in the instant case the Bench itself on 12-12-1990 pointed out the said delay in filing the appeal to Ms. Amrita Mitra, learned Counsel for the appellants and adjourned the hearing. Under these circumstances, even the failure to point out about the delay in filing the present appeal by the Registry cannot be deemed to be the failure of principle of natural justice. Whether the time granted on 12-12-1990 was at all sufficient cannot be the subject-matter of an application for rectification of mistake filed under Section 129B Sub-section (2) of the Customs Act. Admittedly, the Tribunal has no power of review, nor it can be said that there was failure of principles of natural justice on this count. Likewise the contention of the appellants that non-grant of adjournment on 17-12-1990 has resulted in the failure of justice has no force. Moreover, it cannot be the subject-matter of rectification application under Section 129B ibid. Besides, it may also be stated that on 17-12-1990 request for the adjournment was made by one Shri A.N. Bhattacharjee, Consultant, without any authority in his favour on the record. While adjourning the case on 12-12-1990 at the request of the appellants, it was made clear that no future adjournment will be granted. Under these circumstances, refusal to accede to the request for adjournment by the Tribunal by a person who has no authority in his favour cannot be made the subject-matter of the application for rectification in terms of Section 129B(2) of the Act nor in the facts and circumstances of the case it can be said that there was a failure of principles of natural justice.
32. As regards, the issue regarding the maintainability of the present application for the purpose of recalling Final Order No. 1441 /90-C, dated 17-12-1990 passed by the Tribunal whereby the appeal was dismissed as time barred it was contended that owing to shortage of time no authorisation could be issued by the appellants in favour of Shri A.N. Bhattacharjee, Consultant, who appeared on 17-12-1990 and requested for adjournment. This can hardly be called "a mistake apparent from the record" in terms of Sub-section (2) of Section 129B ibid. In the present case there is no mistake in the said Final Order passed by the Tribunal. If the appellants are aggrieved by the said refusal to grant the adjournment on 17-12-1990, the remedy lay elsewhere. They are not entitled to have their alleged grievance redressed by way of an application for rectification under Sub-section (2) of Section 129B, ibid.
33. In the light of the foregoing discussions I answer the questions referred to me as follows :-
(1) present application for ROM is not maintainable in the facts and circumstances of the case.
(2) The application for ROM is not to be allowed.Alternative question No. 2
Neither there was any failure of principles of natural justice nor there is any mistake apparent from the record justifying the recall of the order.
(3) Dismissal has not resulted in failure of principle of natural justice.
Alternative question No. 3There was no denial of principle of natural justice in refusing to grant adjournment. Dismissal of the appeal as time-barred was proper.
34. In view of the majority order, the ROM application filed by the appellants is dismissed as not maintainable.