TMI Blog1993 (1) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 12-12-1996, 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 dear 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 happe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Vakalatnama 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard 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 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure) 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 adjourn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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