TMI Blog2022 (12) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... Mitra, which is an independent and Government recognized inspection agency. It has been stated that the Department having not questioned the findings of the Commissioner with regard to other conditions there was no scope for it to examine the issue of percentage of CaO in Low Silica Limestone - Whereas, the Department has accepted the Order dated 26th June, 2002 of the learned CESTAT, by virtue of which the matters were remanded for passing de novo order by the Commissioner, it is, thus, held that neither the Original Authority nor the CESTAT could travel beyond what was observed and directed in the Order dated 26th June, 2002. Therefore, the learned CESTAT is correct in its approach by holding that it cannot entrench upon the sample issue particularly when there is no dispute with regard to other conditions stipulated in the Exemption Notification issued in connection with the DEEC Scheme. A Court or a Tribunal cannot review its own decision and it is permitted to do so by statute. The Court having general jurisdiction like Civil Court has inherent power; nonetheless, the Court or the Tribunal of limited jurisdiction created under special statute have no inherent power - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product was certified by M/s. SK Mitra, Kolkata contained Calcium Oxide (CaO) content of more than 53%. The said company submitted the Bills of Entry for clearance. On scrutiny, the Department alleged to have found less than 53% CaO, which in view of the Department, is not eligible for allowance of exemption under the DEEC Scheme. Therefore, sample of the product, i.e., Low Silica Limestone was drawn and sent for test to the Chemical Laboratory at Customs House, Kolkata, wherein less than 53% CaO was found in the said product. Therefore, the Department having disputed with regard to claim of benefit under the aforesaid notification, sought to raise the demands. 2.1. The said demands being challenged before the Commissioner of Central Excise Customs, Bhubaneswar-I, the same got confirmed by Order dated 07.04.2000. 2. 2. Being aggrieved, the Company-Respondent preferred Appeals before the CESTAT, which were disposed of on 26th June, 2002 with the following observation: 8. It is observed that the Commissioner has not recorded any finding on the above contentions of the appellants. We are of the view that the appellants cannot be held to have violated the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Scientific and Industrial Research, Govt. of India Jamshedpur. vi) Regarding reliability of the tests done by M/s. S.K. Mitra, they contended that this was an independent and Government recognized inspection agency. They referred to the recognition given to the said firm by the Ministry of Commerce, and also the accreditation given to them by the Ministry of Science Technology for Chemical Tests. It also appears from records that the firm is represented in the Sectional Committee for Methods of Sampling of IS:2109-1982 (reaffirmed 1991). 7.1. Apparently, M/s. TISCO have gone by the test report of M/s. S.K. Mitra which showed a CaO content of over 54% both at load/unload ports ( a reading which was also confirmed by their own laboratory test). It further appears that Haldia (Kolkata) Customs had also gone by the report from M/s. S.K. Mitra, for though part quantity of the same consignment of Low Silica Limestone was unloaded by the same vessel at Haldia Port, the Customs there had not raised any objections/demands on them. 7.2. It is also perhaps pertinent to note here that Section 144 of the Customs Act, 1962 only empower Customs officer to draw samples, but it l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier decision of the Tribunal relating to availability of exemption in spite of not fulfilling the condition relating to CaO content, we do not find any reason to interfere with the impugned Orders of the Commissioner. Arguments of the counsel for the Appellant 3. Mr. Choudhary Satyajit Misra, learned Senior Standing Counsel appearing for the Department would urge that the learned CESTAT should have entertained the Appeals and decided the issued as to whether all the conditions stipulated in the Exemption Notification No.79/95-Cus (as amended) were fulfilled. Though there was no dispute raised by the Department with regard to fulfillment of other conditions as determined by the Commissioner in de novo consideration of Appeals after remand, the learned CESTAT should not have treated itself powerless to consider the aspect which was not gone into by the Commissioner with the issue of percentage of CaO in Low Silica Limestone, which is subject-commodity imported from abroad. The learned CESTAT should have believed the report of the Chemical Laboratory of Kolkata which found presence of CaO at less than 53% in preference to the test report submitted by M/s. S.K. Mitra. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der by the Commissioner, it is, thus, held that neither the Original Authority nor the CESTAT could travel beyond what was observed and directed in the Order dated 26th June, 2002. Therefore, the learned CESTAT is correct in its approach by holding that it cannot entrench upon the sample issue particularly when there is no dispute with regard to other conditions stipulated in the Exemption Notification issued in connection with the DEEC Scheme. 4.4. It may be apposite to say that directing the CESTAT to decide the issue of percentage of CaO at this stage would tantamount to directing the CESTAT to review its decision, which in the opinion of this Court is impermissible. It is trite that review is a creature of statute and cannot be entertained in absence of a provision thereof. In the case of Gopinath Deb Vrs. Budhia Swain, 54 (1982) CLT 515 (which is affirmed by the Hon ble Supreme Court in the case of Budhia Swain Vrs. Gopinath Deb, (1999) 4 SCC 396 ) that the power of review is not inherent in Court or Tribunal; it is a creature of statute. A Court or a Tribunal cannot review its own decision and it is permitted to do so by statute. The Court having general jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
