TMI Blog2017 (3) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... /1171/04-Mum - M/86304/17/CB - Dated:- 8-3-2017 - Mr. M.V. Ravindran, Member (Judicial) and Mr. Raju, Member (Technical) Represented by :Mr. D.H. Nadkarni, Advocate Represented by: Mr. S.J. Sahu, Assistant Commissioner (AR) ORDER Per Raju This rectification of mistake application has been filed by Sun Chemicals in respect of CESTAT order No. A/93181-93182/16/CB dated 17.10.2016. 2. Learned counsel for the applicant argued that the Hon ble Apex Court in an identical matter in the case of CC vs. Vallabh Design Products 2016 (341) ELT A222 (SC), has upheld the decision of the Hon ble Punjab Haryana High Court in the case of CC, Amritsar vs. Vallabh Design Products 2007 (219) ELT 73 (P H). He argued that the facts in the said case were identical to the instant case. In the said case also, DEPB scrips were obtained on the basis of forged documents and the appellants were the bona fide transferee of the said scrips. In the said case, the Hon ble Punjab Haryana High Court has held in para 9 and 11 as follows:- 9. After hearing learned Counsel for the parties, we are of the considered view that this appeal is devoid of any merit. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has been passed in similar circumstances as the decision of the Tribunal dated 17.10.2017 in respect of which the rectification of mistake application has been filed. In both the cases, the DEPB scrip was obtained fraudulently by forging documents before DGFT. In both the cases, the appellants were bona fide transferee of the said scrips with no involvement in the forgery or fraud before DGFT. The Hon ble Punjab Haryana High Court in the said case has observed as follows:- 9. After hearing learned Counsel for the parties, we are of the considered view that this appeal is devoid of any merit. The assessee-respondent admittedly is not a party to the fraud. There are categorical finding that it had purchased DEPB from the open market in the bona fide belief of its being genuine. The assessee-respondent had paid full price and accordingly had availed the benefit. 11. The matter is not res integra. The revenue-appellant has also filed other appeals challenging similar others passed by the Tribunal, bearing (CUSAP Nos. 13, 14, 15 and 17 of 2006. Vide judgment rendered in the case of Commissioner, Customs v. M/s. Leader Valves Ltd. (CUSAP No. 15 of 2006, dated 15-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken such decision into consideration, should be examined in the light of the meaning given by the binding decision, warranting rectification on the ground that there was error apparent from the record in not following the law as now declared. We are aware that a very alarming situation can arise because any subsequent binding precedent may trigger enquiries into the various decided cases where orders have been passed without having the benefit of subsequent binding decisions. Precisely to prevent mockery of finality of the decisions and adjudicatory processes, the amendment was made in the Code of Civil Procedure by adding an explanation with effect from 1-2-1977 to Rule 2 of Order XLVII of the Code of Civil Procedure. As per this explanation, it was laid down that, the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Though the provision has been made in the context of review, rectification on the basis of a subsequent decision of the Supreme Court, may bring about a total change in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed by a decision of the Supreme Court or concerned High Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point and it also ceases to be a point requiring elaborate arguments or detailed investigation/inquiry. The subsequent decisions of the jurisdictional High Court do not enact the law but declare the law as it always was.' This ratio has been reiterated in the case of Assistant Commissioner of Income Tax v. Saurashtra Kutch Stock Exchange Ltd. (2003) 262 ITR 146. The latter decision also lays down the law as regards the scope and powers of Appellate Tribunal to rectify mistakes in its order. 7. In the circumstances, it was incumbent upon the Tribunal to take into consideration the Apex Court's decision to which its attention was invited in the rectification proceedings. The case of the petitioner is more sound considering the fact that the decision of the Apex Court had already been pronounced on the day when the Tribunal decided the appeal, but due to inadvertence only the decision of the High Court had been pointed out and the petitioner invited attention to the decision of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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