TMI Blog2018 (3) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... tification of mistake is barred of limitation - issue of limitation decided in favor of applicant. Merger of the order of this Tribunal with the order of Hon'ble High Court as well as the Hon'ble Apex Court - Held that: - the order of this Tribunal does not merge with the order of the Hon'ble Apex Court or the Hon'ble High Court. Moreover, the Hon'ble High Court itself has given liberty to the applicant to take appropriate remedy in accordance with law. Penalty for the period prior to 28.09.1996 - Held that: - the order of this Tribunal dated 28.02.2012 is not correct, therefore, on the aspect of imposition of penalty prior to 28.09.1996, the issue is to be addressed by this Tribunal and only for the said issue, the order of this Tribunal dated 28.02.2012 is recalled. Application disposed off. - E/ROM/60057/2017 & E/2648/1999 - MO/60057/2018-EX[DB] - Dated:- 29-1-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri. Prem Ranjan, Advocate - for the Appellant Shri. H. Singh, AR - for the Respondent ORDER Per: Ashok Jindal The applicant has filed an application for rectification of mistake in the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty is concerned. We make it clear that being a coordinate Bench of the Tribunal, we cannot sit in appeal the earlier orders of the Tribunal vide which penalty was held to be imposable upon the appellants. 8. Once the provisions of Section 11AC has been held to be applicable in the appellants case, calling for imposition of penalty upon them, such penalty has to be to the extent of 100% of the duty amount. As such by following the apex courts judgement in the case of Rajasthan Spinning Weaving Mills as also in the case of Dharmendra Textiles, we enhance the penalty equivalent to the duty confirmed against the appellants. The matter is disposed of in above manner. 4. The said order was challenged by the applicant before the Hon'ble High Court of Punjab and Haryana in Central Excise Appeal No.27/2012 and the said appeal was withdrawn by the appellant with the liberty to file appropriate application in reference CEC No.11 of 2002 filed by the Revenue. The applicant filed an application for recalling the order dated 27.09.2010 passed by the Hon'ble High Court. As per the direction of the Hon'ble High Court dated 27.09.2010, this Tribunal has already passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Apex Court, the Ld. Counsel for the applicant relied on the decision of the Hon'ble Apex Court in the case of Kunhayammed Vs. State of Kerala reported in 2001 (129) ELT 11 (SC) and prayed that the application for rectification of mistake be allowed. 8. Heard the parties and considered the submissions. 9. As facts of the application are not in dispute, therefore, the same are not repeated for sake of the brevity. 10. The only issues raised by the Revenue are that: (A) The application is not maintainable on the ground of limitation. (B) The order of this Tribunal has been merged with the order of the Hon'ble High Court as well as the Hon'ble Apex Court. We are dealing both the issues separately: Issue NO. 1 Limitation: The issue of limitation has been dealt by the Hon ble Apex Court in the case of Sunitadevi Singhania Hospital Trust (Supra) wherein the Hon'ble Apex Court observed as under: 19. It is true that the period of limitation specified in terms of Sub-Section (2) of Section 129(B) of the Customs Act is required to be observed but the Tribunal failed to notice that it has inherent power of rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 163 (Kar.), where it has been held that the limitation of six months prescribed is applicable only if the Tribunal exercise suo motu power, The said period of limitation for disposal of proceedings for rectification is not applicable to application filed by the aggrieved party. In that view of the matter, the said substantial question of law is answered in favour of the assessee and against the revenue. 11. We further take a note of the fact that the Ld. AR relied on the case of National Engg. Inds. Ltd. (Supra) which has been affirmed by the Hon'ble Apex Court but the decision in the case Sunitadevi Singhania Hospital Trust (Supra) was not available to the Tribunal, therefore, the decision of Larger Bench cannot be followed. 12. We further find that the affirmation of the said order of this Tribunal by the Hon'ble Apex Court is through a non-speaking order, therefore, the same cannot be held that the application for rectification of mistake is barred of limitation. In these terms, we decide the issue of limitations in favour of the applicant. Issue No. Il Merger of the order of this Tribunal with the order of Hon'ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution, Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, Tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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