Bombay High Court
Metchem Impex vs Commissioner Of Customs on 28 August, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
2024:BHC-OS:13244-DB 1/2 916-CUAPP-5-2023.doc
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
PURTI
PURTI PRASAD
PRASAD PARAB
ORDINARY ORIGINAL CIVIL JURISDICTION
PARAB Date:
2024.08.29
15:41:22
+0530
CUSTOMS APPEAL NO. 5 OF 2023
Metchem Impex ....Appellant
V/s.
Commissioner of Customs and Anr. ...Respondents
----
Ms. Kiran Doiphode i/b V. M. Doiphode & Company for Appellant.
Mr. Advait M. Sethna a/w Mr. S.D. Deshpande, Mr. Sandeep Raman and
Ms.Niyanta Trivdei for Respondents.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATED : 28th AUGUST 2024
P.C. :
1. At the outset Mr. Sethna states that Mr. Deshpande has received
instructions to file vakalatnama in the matter on 16 th August 2024 and he
will be filing vakalatnama before the end of this week and a copy thereof
will be served upon appellant's advocate. Statement accepted as an
undertaking to this court.
2. This appeal is filed under Section 130 of the Customs Act, 1962.
The following four substantial Questions of Law are proposed.
QUESTION OF LAW
(a) Whether the Ld. Tribunal has erred in holding that though the
Tribunal has recorded points taken in the order but, owing to relative
insignificance of several that did not merit a separate finding on each of
them was not required for rendering substantive findings, when the
Appellate Tribunal is the final fact finding authority and the points
urged had direct nexus with the finding abruptly recorded by the Ld.
Tribunal and therefore the Ld. Tribunal ought to have given a specific
finding on the points urged?
(b) Whether the Ld. Tribunal has erred in holding that the submissions
which was suitable to the Appellant should be carried in Appeal, when
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Section 129B(2) of the Customs Act, 1962 provides that the Appellate
Tribunal may with a view to rectify 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 brought to its notice by the
Appellant or Revenue, when it is settled law that non consideration of
grounds urged by Ld. Tribunal is mistake apparent from the record?
(c) Whether the impugned order passed by the Ld. Tribunal
dismissing the Miscellaneous Application for Rectification of Mistake is
perverse and non speaking, when the Ld. Tribunal abruptly concluded
against the Appellants without giving any specific finding against the
important submissions having direct bearing on the issues involved and
holding that Application filed is an exercise in frivolity and has caused
wastage of time, when the Ld. Tribunal took more than 5 years to
decide the Application?
(d) Whether the observations that Appellant has taken casual attitude
towards a statutory Appellate process may not be met with such
tolerance in future is perverse, when the Ld. Tribunal even after hearing
Application two times did not pass orders and took 5 years to decide the
Rectification of Mistake Application filed under Section 129B (2) of the
Customs Act, 1962, a statutory remedy provided to Appellant?
3. Having considered the questions of law proposed, we find the
same to be arising out of the orders passed by the Tribunal rejecting
Miscellaneous Application No. 93194 of 2017 dated 25 th August 2022 filed
by appellant. It is settled law that appeal is not maintainable against the
order rejecting Miscellaneous Application. We find support from the
judgment of this court in Chem Amit vs. Assistant Commissioner of Income
Tax1. In that case the court was dealing with the provisions of Section
260 A of the Income Tax Act, 1961 which is pari materia to the provisions of
Section 130 of the Customs Act, 1962.
4. Therefore, Appeal dismissed.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
1 2004 SCC OnLine Bom 976
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