Allied Fibers Ltd vs Commissioner Of Customs (Import) ...
2017 Latest Caselaw 4217 Bom

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            IN THE  HIGH COURT OF JUDICATURE AT BOMBAY

                  ORDINARY ORIGINAL CIVIL JURISDICTION

                        CUSTOM APPEAL NO. 109  OF 2015



M/s. Allied Fibers Ltd.                                         ..Appellants
     Versus
1    Commissioner of Customs
     (Import)
2    Customs, Excise & Service Tax Appellate
     Tribunal                                                    ..Respondents

Mr. Kiran Doiphode I/by V.M. Doiphode & Co.  for the Appellants.
Ms. S.I. Shah I/by S.I. Shah & Co.   for Respondents/

                CORAM:    ANOOP V. MOHTA AND 
                          SMT.ANUJA PRABHUDESSAI, JJ. 

                 DATE  :    July 10,  2017 

ORAL JUDGMENT (Per Anoop V. Mohta, J.):

1               This is an Appeal under Section 130 of the Customs Act, 

1962. 



2               Admit, on the following questions of law:

         (a)      Whether   the   Hon'ble   Tribunal   erred   in   holding 

that ROM Application filed within the period of six

months from the date of receipt of the order was

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beyond the time limit prescribed under the law?

(c) Whether the time limit of 6 months stipulated in

Section 129B(2) will apply only in a case where the

Tribunal suo moto rectifying the mistake crept in an

order, which is apparent from the record?

3 Heard forthwith finally by consent of the parties.

4 The Appellant has challenged impugned order dated

15.07.2017 passed by Customs, Excise & Service Tax Appellate

Tribunal, West Zonal Bench at Mumbai. (for short, "the Tribunal"|)

5 The relevant facts are as under :

Between October 1994 to September 1995, the Appellant

has imported 8 consignments of capital goods. On 24.03.1998, a

Show Cause Notice was issued to the Appellant demanding customs

duty under Section 59 of the Customs Act, 1962 (The Act). On

27.3.1999, the Commissioner of Customs (Import) Mumbai dropped

all the proposal against the Appellant in the notice. On 30.7.2004, on

appeal, Tribunal (CESTAT), Mumbai, set aside the adjudication order

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and remanded the matter, to the original authority for de novo

adjudication. On 30.11.2006, the learned Commissioner of Customs

Mumbai confirmed the demand of customs duty, confiscated the goods

and imposed penalty on the Appellant. On 21.8.2014, Appellant

preferred Appeal before the Tribunal which was dismissed. On

8.1.2015, Appellant did not receive the order passed by the Tribunal

for considerable time of conclusion of hearing, therefore, Appellant

requested Registrar of the Tribunal for handing over the order if any

to bearer of the request letter. On 9.1.2015, the Registrar of the

CESTAT handed over the order passed by the Tribunal to the

representative of the Appellant. On 6.7.2015 the Appellant filed an

Application for Rectification of Mistakes as provided under section

129B of the Act. On 15.7.2015, the Misc. Application was dismissed

on the ground that the same was filed beyond the time limit

prescribed under the law.

6               Section 129B(2) reads as under:

       "129-B.  Orders of Appellate Tribunal. - 

         (1) ......

         (2)      The   Appellate   Tribunal   may,   at   any   time   within   six 






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months from the date of the order, with a view to rectifying

any mistake apparent from the record, amend any order passed

by it under sub-section (1) and shall make such amendments if

the mistake is bought to its notice by the Principal

Commissioner of Customs or Commissioner 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.

7 Admittedly, the Appellant received the copy of order dated

9.1.2015. The Application for rectification was filed by the Appellant

on 9.6.2015. The Tribunal, therefore, in view of the stated provision

and the judgment so referred in the order, rejected the Application.

That resulted into rejection of the Appeal on merit itself.

8               The provision so reproduced above itself provides that the 






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Tribunal   suo-moto     need   to   rectify   the   mistake,   if   any,   within   six 

months from the date of the order.    In this case, there was no such 

suo motu action initiated by the Tribunal.    The Applicant/Appellant, 

however, after receipt of the impugned order, taken out the

Application so recorded above. The Tribunal, therefore, was required

to consider and decide the merits of the matter within six months

from the date of receipt of such Application. This is for simple reason

that the Appellant and/or the party would not be in a position to

apply for rectification unless and until the actual order is seen and/or

verified. There is nothing on record to show that the Appellant has

received the copy of order on a particular date immediately after

passing of the order. On the contrary, the Tribunal issued the copy of

order on 9.1.2015, on the request/Application filed/made by the

Appellant for the same. The statement is made that this Application

for copy was moved as the Respondent/Department raised the

demand on 8.1.2015. The Department's submission, that the plain

reading of section itself is sufficient to reject the Application for

rectification so filed by the Appellant beyond six months from the date

of order, is unacceptable.

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9               The judgment so read and referred by the Tribunal while 

rejecting the Application are distinct and distinguishable on facts and

cannot be the foundation to reject such Application so filed by the

Appellant. Furthermore, referring to clause (a) of Section 37C of

Central Excise Act, 1944, a judgment is delivered by the Gujarat High

Court in Vadilal Industries Ltd v. Union of India 1 . The following are

the observations made in paras 14 and 15, in our view, support the

case of the Appellant:

"14 ... The Section is divided into two parts. The first part grants discretion to the Tribunal to take up any order made under sub Section (1) of Section 35C of the Act for rectifying any mistake apparent from record or amending any order within six months from the date of the order. The second part of the section requires that the Tribunal shall make such amendments if the mistake is brought to its notice by either party to the appeal before it. The p[arty to the appeal can bring the fact of apparent mistake on record only after going through the order made by the Tribunal. Therefore, to read that the period of limitation has to be computed at any time within six months from the date of the order does not fit in either with legislative intent or the language employed by the provision.

15 There is another angle from which the matter can be approached. It is only the party to the appeal who finds that the order contains a mistake apparent from the record and is aggrieved by such mistake, would be in a position to move an application seeking 1 2006 (197) E.L.T. 160 (Guj.)

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rectification of the order. Therefore also, unless and until a party to the appeal is in a position to go through and study the order it would not be possible, nor can it be envisaged, that a party can claim to be aggrieved by the mistake apparent from the record. Hence, even on this count the period of limitation has to be read and understood so as to mean from the date of the receipt of the order."

We are also of the same view referring to the similar provision so

reproduced above. Under Customs Act the party to the Appeal, other

party, as per the second part of the section, can apply for rectification

of the mistake. Therefore, it is necessary for the party to see and

verify the order so passed. That can only be done after receipt of the

same. Therefore, the Application for rectification filed by the

appellant in view of the above background which was admittedly

within six months, the rejection order passed in the present case, is

unacceptable. It renders the party remedyless for their no fault. This

amounts to dismissal of appeal without hearing on merits.

10 We have gone through the provisions and related

provisions where it is noted that there is no power and/or remedy

available and/or no provision for condonation of delay in filing such

Application for rectification. In the absence of any such provision, we

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are of the view that the second part of the Section need to be read in

the interest of the Appellant. The Application so filed after receipt of

the order serve the purpose and object of the Application for

rectification. The Tribunal, suo motu, even as per proviso to Section

may correct the mistake within six months. But, if other party to

appeal required correction, then second part of the Section is available

to the Appellant/party. In such case, the strict interpretation of

appeal within six month from the date of order referring to first part

of the Section is unacceptable. Any application for correction filed by

the appellant, other party, before the Tribunal, is required to be filed

within six months from the receipt of the copy of the order, such

application may not be dismissed, as not filed, within six months from

the date of order.

11 Strikingly, the Apex Court in Vidyacharan Shukla v.

Khubchand Baghel & ors.2 (Five Judges Bench) considering the terms

for the purpose of determining any period of limitation referring to

provisions of Limitation Act and dealing with the rights of appeal

conferred under the Act, though while dealing with the

2 AIR 1964 SC 1099

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Representation of the People Act, 1951 held that the Appellant is

entitled to exclude the time taken by him for obtaining the copy of the

order and condoned the delay in filing such appeal. The provisions of

Limitation Act read with the provisions of the Act in question,

therefore, is required to be read together as both are relating to

procedural aspects of filing such an appeal/application. As there is no

specific provision to deal with the Limitation aspect from the receipt of

the order, we are of the view that a case is made out by the Appellant

even to condone the delay, if any. The period of limitation may be

different under two different circumstances. Therefore, the

Application so filed under the same provision from the receipt of order

is within limitation. Such application cannot be liable to be dismissed

as sought to be contended by the Department.

12 Therefore, taking overall view of the matter, we are

inclined to interfere with the order so passed by holding that the

second part of the Section read to mean that the Appeal/Application

may be filed within six months from the receipt of the order. It would

not be treated as beyond the prescribed period of six months from the

date of order.

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13              Therefore, the following order :

                                     ORDER

         (a)     The Appeal is allowed.

         (b)     Order   dated   15.07.2015   passed   by   Customs, 

Excise & Service Tax Appellate Tribunal, West Zonal

Bench at Mumbai is quashed and set aside.

(c) Misc. Application for correction filed by the

Appellant is restored to record. The same to be

disposed of on merits in accordance with law.

(d) Accordingly, the questions of law (a) and (c) are

answered.

         (e)     No costs. 



(ANUJA PRABHUDESSAI,J.)                          (ANOOP V. MOHTA, J.)