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2023 (6) TMI 908 - AT - CustomsJurisdiction of the Bench to Hear the application of Rectification of Mistake - recall of the entire order - Rule 31(A) of the Customs, Excise & Service Tax Appellate Tribunal (Procedure) Rules, 1982 - HELD THAT:- It does not appeal to reason as to why an application for recall of the order can be placed before another Bench of the Tribunal. If this practice is permitted to continue an appellant can resort to the practice of Bench hunting by filing an application for recall of an order before another Bench even if the matter has been decided on merits. It will be appropriate to refer to Section 129B (2) of the Customs Act which provides that the Appellate Tribunal may, at any time within six months 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 (1). Rule 31(A) of the Customs, Excise & Service Tax Appellate Tribunal (Procedure) Rules, 1982 provides that an application for rectification of a mistake under Section 129B (2) of the Customs Act shall be heard by a Bench consisting of the Members who heard the appeal giving rise to the application, unless the President directs otherwise. Under the proviso to Rule 20, it is only where an appeal is dismissed for default that the Tribunal can make an order setting aside the dismissal, and restore the appeal. In a case where the matter has been decided on merits in the absence of the appellant, an application for recall of the order would, therefore, not lie and only an application for rectification of mistake in the order can be filed. Once an application for rectification of mistake had also been filed by the appellant, it was the bounden duty of the office to have listed the application before the same Bench - the explanation offered by the office that at least one Member of the Bench was a Member of the Bench that recalled the order is only an excuse as both the Members of the Bench that had dismissed the appeal were available on that date. It is, therefore, a fit case where a strict warning should be given to the concerned Deputy Registrar responsible for the listing of the application(s) and it is, accordingly, so ordered.
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