Customs, Excise and Gold Tribunal - Mumbai
M.C. Desai vs Collector Of Customs on 29 August, 1990
Equivalent citations: 1991(56)ELT425(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. This application is filed jointly by six applicants, seeking review of our Order Nos. 357-363/89 WRB dated 11-5-1989 (common order passed in Appeal Nos. CD (BOM) 409/85, 457/85, 458/85, 470/85, 471/85, 472/85 and 422/85) and reconsideration of the entire matter in the light of the order passed on 27-4-1989 by the Special Bench-A of this Tribunal, in Steel Tube Products v. Collector of Customs, Cochin, as reported in 1989 (44) ELT 97 (Tri.) .
2. Having a brief resume of the proceedings so far as the same is necessary for the purpose of deciding the present application, the applicants Nos. 2 to 6, as Letters of Authority holders of some REP licences, imported Alkyl Benzene, and sought clearance of 800.00 MT of said Benzene, for home consumption by producing 15 REP licences, duly endorsed in terms of Para 138(13) of the Import Policy AM 1983-84. The Intelligence Wing of the Customs, however, suspected the genuineness of those licences and hence sought clarification from the licensing authority who confirmed the said suspicion and informed them that the said REP licences, as issued by them did not bear any endorsements in terms of Para 138(13) of the Policy. It was therefore confirmed that the licences issued by the licensing authority were subsequently unauthorisedly interpolated. Proceedings were therefore initiated against all the applicants including applicant No. 1, alleged to be the man behind this, and on completion of the adjudication, goods were held liable to confiscation and the parties were imposed personal penalties of various amounts. The applicants herein preferred appeals before this Bench of the Tribunal, which confirmed the finding that the import was unauthorised, and clearance thereof was not permissible under the REP licences produced and confirmed the findings of the adjudicating authority with minor modification in the quantum of penalty amount.
3. It may be mentioned here, that before filing the present application, these applicants filed six applications, being C/Ref. Nos. 26/89,28/89,29/89,30/89,31/89, under Section 130(1) of the Customs Act, seeking reference against the orders of this Bench in the appeals, to the High Court of Judicature at Bombay, basing their submission on the point, that the Tribunal had materially erred in holding the import as unauthorised and refusing to clear the same, under the REP licences produced by them, and pleading that as held by the Special Bench-A of this Tribunal in Steel Tube Products v. Collector of Customs, (supra), the licence once issued was valid till cancelled by the competent authority and all imports till their cancellation ought to have been allowed. This Bench has vide its order No. 353-358/90 - WRB dt. 3-2-1990 has rejected the said applications, where distinction has been made in the facts before the Special Bench of the Tribunal and the facts before us.
4. Shri Pochhkhanawalla, the Ld. Advocate appearing for all the applicants here, initially adhered to the prayer made in the memo of this application and submitted that the appellants wanted a review of the order passed by this Bench in the appeals. However, when a pointed question was put to him as to the powers of this Bench to review its earlier order, he conceded that the law has not invested the powers of review in the Tribunal, and altered his submission and pleaded that the application filed may be treated as the one for rectification of error. Advancing his arguments on the said point, Shri Pochhkhanawalla submitted that there was an error, inasmuch as before the orders were passed by this Bench of the Tribunal on the appeals preferred by the applicants, the Special Bench of this Tribunal had vide Order dated 27-4-1989, already held that even a fraudulent licence was deemed to be valid till cancelled, and imports thereunder till its cancellation were legal and valid. In his submission, therefore, prior to 11-5-1989 when this Bench passed the impugned order, the law was already laid down by a three member Bench, which had a binding effect so far as this Bench was concerned, but it was not known either to the Bench or to the applicants at that time, which resulted into non-availability thereof. Submitting that this had to be treated as error apparent on the face of it, Mr. Pochhkhanawalla submitted that the orders passed by the Bench ought to be suitably rectified. He also pleaded that facts before the Special Bench and those before this Bench were identical, as in both the cases, the licences were tainted with fraud, and the status thereof cannot be differentiated on the ground whether fraud was pratised prior or subsequent to issue. In both the cases, the licences were issued by the competent authorities, and as held by the Special Bench, they had to be treated as valid till they were cancelled. In his submission, distinction made by this Bench while disposing of the Reference Applications was also not proper. He further submitted that the Special Bench has based its conclusion on the same set of judicial pronouncements over which he had placed reliance while arguing the appeals before this Bench and when interpretation thereof, by a Larger Bench was already in existence, since prior to the impugned decision of this Bench, it was not open to this Bench to take any different view, and for that purpose, he referred to and relied upon the decision of Delhi High Court in Paras Laminates Pvt. Ltd v. Customs, Excise and Gold (Control) Appellate Tribunal and Anr., reported in 1990 (45) ELT 521 (Del.).
5. Shri Depak Kumar, the Ld. D.R. opposing the application, submitted that the application as filed sought relief of review, and with no powers to review being invested in the Tribunal, the application, ex facie was not maintainable. He then submitted that even rectification is not permissible, as for that purpose, error apparent on the face of the record is the essential criteria. Without conceding that the ratio of the Special Bench decision was applicable here, Mr. Deepak Kumar argued that the decision of the Special Bench was published in the September issue of Excise and Customs Reporter, and was not made public before that, and as such, at the best, it can be said that two different Benches have given different findings, but that in any case, cannot bring the case within the purview of powers to rectify the order. He also submitted that this Bench has already dealt with the point while deciding Reference Applications and has distinguished the decision of the Special Bench, on the factual position and as such, there is no error at all calling for any rectification.
6. The entire gamic of the submissions made by the Ld. Advocate for the applicants is the decision of the Special Bench in Re: Steel Tube Products (supra). We have already examined the said decision vis-a-vis the facts in the present proceedings and have held that the facts in both the matters materially differ. Reiteration thereof appears to be a labour in futility. However, when in spite of our clear findings there, the applicants have desired to pursue this review, converted to rectification application, some of the points have to be re-iterated. The basic factual distinction between the two is that in the case before the Special Bench, the licence under consideration was a validly issued licence, which was obtained by a fraudulent mis-representation, whereas here, after the licences were obtained, there were interpolations made, by some party other than the licensing authority and an entry was made in those licences, making it appear that some items which otherwise were not permissible under the Import Policy then in force, were permitted to be imported under those licences. The Special Bench, has, in Para 20 of its order, clearly held that the ratio of the judgment of the Supreme Court and the Tribunal referred to by them in earlier part of their order was squarely applicable and basing their decision on those judgments they were arriving at the conclusion as they did. The judgment of the Supreme Court, that they have referred to is the one in East India Chemical Co v. Collector of Customs, Calcutta reported in 1983 (13) ELT 1342, and as could be seen from the portion of the judgment reproduced, the licence was obtained by misrepresentation. The ratio of the decision of the Supreme Court, in the above referred case is that the licence "obtained by fraud" is only voidable and by no stretch of imagination it can be inferred that ratio would stand attracted even to the licence fraudulently interpolated subsequent to its issue.
7. Submission made by Mr. Pochhkhanawalla, that all the licences once issued by the competent authorities stand at par, and the point whether fraud was practised prior or subsequent to issue becomes immaterial, and the licence remains valid till cancelled. The argument has to be rejected as illogical, as there exists a fundamental distinction between the two. In the licence obtained by fraud or mis-representation, the licensing authority is duped to issue a licence which otherwise they would not have issued, whereas in the licence fraudulently interpolated subsequent to its issue, no licence is issued by the authority for the interpolated item. It is significant to note here, that in the instant case, the item imported is such for which REP licences, but for the subsequent interpolation made, could not have been produced, to seek clearance for home consumption.
8. When the decision of the Special Bench is entirely on different set of facts, and when the licences under consideration there could not be equated with the licences here, and when the licences "obtained by fraud" and licences fraudulently interpolated subsequent to issue cannot be treated at par, the ratio of the decision of Special Bench cannot stand attracted.
9. The genus of the arguments advanced by the Ld. Advocate for the applicants is the Special Bench decision in Re : Steel Tube Products (supra), and when the said is held as not applicable here, the rest of the submissions remain of no importance. Even the issue of maintainability of application for rectification under the circumstances, also becomes infructuous and need not be gone into.
10. The application, therefore, has no merits and is rejected.
R. Jayaraman, Member (T)
11. I have perused the order recorded by the learned Member, P.K. Desai. While agreeing with the conclusions arrived at by him for rejecting the applications, I may add the following reasons justifying the said decision:
12. Under Section 129B of the Customs Act ,1962, the Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparant from the record, amend any order passed by it and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal. These applicants, had earlier moved a reference application on a question of law more or less on the same issue based on the decision of the Special Bench of the Tribunal in the case of Steel Tube Products reported in 1989 (44) ELT 97 (Tri.). This Bench after considering the Reference Application vide its order No. 353-358/90/WRB dated 2-3-1990 rejected the same holding that the Reference Applications are not maintainable. The applicants have now moved the application seeking review of the order by treating it as a mistake apparent on record. At the outset I may mention that as per sub-sec. (4) of Section 129B save as otherwise provided in Section 130 or Section 130E, orders passed by the Appellate Tribunal on appeal shall be final. From this legal position it is clear that the Tribunal on its own or on application made by the other parties cannot review its own finding. Either party can challenge it on a point of law and seek for a reference to be made as per the provisions of Section 130 of the Customs Act. In the classification and valuation matters, an appeal against the order passed by the Appellate Tribunal lies to the Supreme Court. In this case, as already indicated, the applicants moved Reference Applications which were considered in detail by this Bench and rejected by the Bench's order dated 2-3-1990. Hence the only provision under which this application could be entertained is the provision available under sub-sec. (2) of Section 129B. For entertaining such an application, it is to be established that a mistake apparent from the record has occurred, which is required to be rectified. In this case it is an admitted fact that the judgment of the Special Bench was neither canvassed before us nor available in the hands of either of the Tribunal or of the applicants. The judgment of the Tribunal came to be published much after the date of the order of this Bench. Hence, if, at all, the applicants construe that this Bench has erred on a point of law, since it is contrary to the legal position taken by the Special Bench, the remedy can be sought for only under Section 130 of the Custom's Act, which has already been exhausted by the applicants with no success. Hence the present application seeking for review of our order treating it as a mistake apparent from the record, is not at all maintainable. A mistake apparent on record should be evident from the record itself, and it is not a point for argument whether the ratio of the Special Bench could be applied in such cases and on that basis the findings already recorded should be revised and re-written. In view of the fact, that there is no mistake apparent on record, the Misc. application, which could be brought only under purview of Section 129B(2) is not sustainable and deserves to be rejected. Since on the very same point a reference application has already been moved under Section 130 of the Customs Act and also disposed of by this Bench, no further action is called for by this Bench and the present application is totally misplaced and deserves rejection.