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Commissioner of Customs (Export-II) , Mumbai Versus Vision Inc

2016 (11) TMI 1266 - CESTAT MUMBAI

Rectification of mistake - stay of recovery - the Bench, while granting the interim prayer of the appellant, appeared to have been guided by the decision of the Principal Bench in Hem Chand Gupta & Sons Versus Commissioner of Cus. (ICD) , New Delhi [2015 (1) TMI 1266 - CESTAT NEW DELHI] instead of following the decision of the Hon’ble High Court of Bombay in Sunil Gupta v. Union o India & Ors [2014 (12) TMI 151 - BOMBAY HIGH COURT] - Held that: - The applicant is in gross error in behaving that, .....

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ue while seeking the rectification. Both sides of the bar may consider themselves competent to form an opinion on our orders or may be dissatisfied by the 'failure' rate but that does not confer upon them the liberty to articulate, and that too in intemperate language, which, regretfully, the representative of Revenue arrogated to himself. Such lack of grace does not add to the credit of the office of the Chief Commissioner (AR) as it demonstrably reveals the failure to instill the importance of .....

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terpretation is seen as potential threat to their fief is disservice to public interest. We are not sure if the present application is motivated by ill-advice, lack of knowledge, unwillingness to accept the law, overweening desire to display juristic brilliance or merely an exercise in evading responsibility. We are certain that it demonstrates impulsive reaction without even the most rudimentary application of mind. To condone that is to abet in condoning irresponsible behavior and to encourage .....

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Shah, Advocate Order Respondent in appeal no. C/88386, 88388, 88457 & 88458/2014, the Commissioner of Customs (Export-Il), Mumbai, is before us with this Miscellaneous Application (Others) under section 129B of Customs Act, 1962, read with rule 31A of CESTAT (Procedure) Rules 1982, for rectification of mistake in interim order no. S/428-431/15/CB dated 10th August 2015 by which this Tribunal had granted stay of recovery of amounts in the order impugned before us. 2. According to the applica .....

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ication. 3. The specific prayer is that suitable rectification of the interim order may be effected in accordance with the decision supra of the Hon'ble High Court of Bombay. Thus, the applicant, in effect, prays for vacating the stay on recovery of amounts confirmed in the adjudication order. 4. Anticipating our disinclination to review our own order, it was pointed out that the Tribunal in Ms Girnar Trans ormers Pvt Ltd v. Commissioner of Central Excise, Kanpur [2014-TIOL-305-CESTATDEL] ha .....

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While considering an application or waiver of pre-deposit, the appellate Commissioner is required to avoid a mechanical and ritualistic approach. A waiver of pre-deposit application must be disposed of applying the principles set out in the judgments of the Allahabad High Court in ITC vs. Commissioner (Appeals) Meerut46 and the A. P. High Court in CCE, Guntur vs. Sri Chaitanya Educational Committee47 A summary of the principles governing the exercise of discretion in this area is set out in para .....

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ecord) only on this Tribunal the Commissioner (Appeals) may entertain an application for rectification modification of a pre-deposit order, but only or rectification o an error on the face of the record; (c) The appellate Commissioner could avoid an invitation/ plea for rectification by a careful, good faith and critical analysis of the prima-facie merits of the case and other relevant parameters, while disposing of an application or pre-deposit. Adjudication discipline mandates that the appella .....

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igh Court of Bombay in Suzlon Infrastructure Ltd v. Union of India [2009-TIOL-327-11C-MUM-ST] that application for rectification of mistakes is entertainable even when matter is pending the Third Member for reference on difference of opinion was also cited. 6. The stay granted by this Bench relates to appeal against the order-in-original no. CAO no. 45/2014/CAC/CC(ADJ)/ST dated 28th March 2014 of Commissioner of Customs (Adjudication), Mumbai directing recovery of drawback disbursed and imposing .....

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edure) Rules, 1982 and, in particular, to rule 28A, dealing with procedure for filing and disposal of stay petitions. It does not envisage review of a stay order that has been passed by the Bench. We are, at times, presented with applications for modification of our own orders which are, generally, not entertained except on specific orders of competent courts. We have been consistent in our interpretation that modification, by and large, tantamounts to review of our order. We are not impressed w .....

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We are in agreement that such a rectification of mistake may, undoubtedly, be effected at any stage. M/s Suzlon Infrastructure Ltd holding that the decision of a split division bench was as yet a non-enforceable order, was intended to avoid the piquant situation of wastage of judicial time if the answer to the reference was to be taken as the earliest stage of seeking rectification. According to Learned Authorised Representative, a stay order is similarly situated. Though from the following: 17 .....

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that they are merely opinions. These are two distinct judgments, which on account of difference in answer to the points raised, the members differ on the reliefs to be granted and as such is not a mal decision…. … ….. 22. Apart from that, it is the cardinal duty of Court or Tribunal to do complete justice between the parties subject to its jurisdiction in order to avoid multiplicity of proceedings. The Court or tribunal in such case has an inherent jurisdiction to decide an .....

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appear so, we cannot but note that, in doing so, the Hon'ble High Court also observed that: 18 We have also to consider whether a Court or tribunal has suo motu or inherent or implied power of procedural review i the said has not been specifically conferred. In our opinion, the issue is no longer res integra having been concluded by the Supreme Court in Grindlays Bank v. Central Government Industrial Tribunal & Ors-1980 (supp) Supreme Court Cases 420. We may gainfully reproduce the follo .....

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unless a statute specifically provided for it. Obviously, when a review is sought due to G procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitae to prevent the abuse of its process and such power inheres in every court or Tribunal. It will be thus clear, that there is inherent or incidental power or procedural review in courts and tribunals to do justice. This view has been reiterated by the Supreme Court in J.K. Synthetics Ltd. v. Collector of .....

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zed the justice of the outcome. Inaccurate recording of facts that were articulated or arguments rendered by either side that have been misconstrued and reported certainly need rectification. Such remedy extends to an error in the operative portion that is not synchronous with the conclusion leading to it. However, to alter a decision merely to alleviate the dissatisfaction of one or other party to the appeal would be a traversity of this power of remedy vested in the appellate body. The decisio .....

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are not required to record every proposition, counter or evidence advanced. As a Tribunal, we are required to frame the points to be determined, assess evidences relevant to such determination and arrive at our conclusion. Our assessment of evidence is not amenable to programming or mechanization; if that were so, there is no rationale for such an empowered appellate institution to exist. We have perused the decision in re Sunil Gupta pertaining to scope of empowerment under section 28(11) of C .....

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ire Customs Act, 1962. Neither does it extend to any Rules framed there under. We did not have to elaborate upon the above distinction in the present set of facts at the preliminary stage of disposal of application for stay and we did not do so. 11. Suffice it to say, that in the vocalization of justice by the Tribunal, the reverberations of echoes of each binding decision handed down from the higher courts and the percussion of every pronouncement from our coordinate benches set the music. Such .....

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eft worse off than others covered in the same Investigation. Hence our reliance on the decision in re Hemchand Gupta & Ors. 13. The applicant is in gross error in behaving that, by the amendment in section 28 of Customs Act, 1962 which pertain only to recovery of duty, the 'officer of customs' is, in every provision of the Act and Rules, a 'proper officer'. A prejudicial understanding of a judicial decision is no substitute for diligent comprehension and responsible reaction. .....

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