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LILADHAR T KHUSHLANI Versus COMMISSIONER OF CUSTOMS

2017 (2) TMI 200 - GUJARAT HIGH COURT

Application of rectification - time limitation - Held that: - the decision of the Hon’ble Supreme Court in the case of D. Saibaba Vs. Bar Council of India reported in [2003 (5) TMI 508 - SUPREME COURT], it is observed and held that the period of limitation shall commence from the date of dispatch of the order and not from the date of actual passing of the order - The matter is remanded to the learned CESTAT to decide the rectification application afresh in accordance with law and on its own meri .....

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nch, Ahmedabad (hereinafter referred to as CESTAT ) dated 18/08/2015 by which the learned CESTAT has dismissed the rectification application on the ground that the said application has been preferred beyond the date of six months from the date of passing the original order, appellant has preferred the present Tax Appeal. [2.0] It is the case on behalf of the appellant that from the date of service of notice of the order, which was sought to be rectified, within six months the rectification appli .....

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d /rectified by the concerned assessee? [2.1] While passing the impugned order the learned CESTAT has relied upon the decision of the Hon ble Supreme Court in the case of Commissioner of Customs, Central Excise Vs. M/s. Hongo India (P) Ltd. & Anr reported in (2009) 236 ELT 417 (SC). However, on considering the facts /questions before the Hon ble Supreme Court in the said decision, it appears that the controversy was whether despite the specific provisions not to condone the delay beyond the .....

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nion of India reported in 2006 (197) ELT 160 (Gujarat). In the said decision while considering the provisions of the Central Excise Act, 1944, more particularly, Section 37C, the Division Bench has held that the period of limitation to file the rectification application is to be computed from the date of receipt of order by the party and not at any time within six months from the date of the order. While holding so, in paragraph nos.14 to 16 the Division Bench has observed and held as under; 14. .....

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ny time within six months from the date of the order. However, when one reads the latter portion of the provision, it becomes abundantly clear that the period of six months from the date of order is in relation to the power of rectification that the Tribunal may exercise suo motu. 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 amend .....

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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 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 b .....

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nsidered by the learned Single Judge in the case of Ritaben Kamleshbhai Mehta, Through P.O.A. Devang Kamleshbhai Mehta & Ors. Vs. State of Gujarat & Ors. reported in 2015 (2) GLR 1664. Before the learned Single Jude the question was whether the period of limitation to file the Appeal against the order of Deputy Collector, which was 90 days is required to be computed from the date on which the order of first adjudicatory authority communicated to the affected person or from the date of th .....

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