TMI Blog2022 (12) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoning. As regards a ground in the rectification application based on the decision of Pee Vee Textiles, the learned Assistant Government Pleader contended that the decision in the case of Pee Vee Textiles [ 2008 (10) TMI 616 - BOMBAY HIGH COURT ] contains an elaborate discussion of facts and various factual distinctions made between the two schemes, i.e. of 1993 and 1988 have been omitted from consideration and reading of Pee Vee Textiles would clearly show that there is no legal proposition sought to be culled out by the Tribunal in the First Order as emerges from the decision of Pee Vee Textiles in respect of the 1988 Package Scheme of Incentives. The learned Assistant Government Pleader states that if Respondent No. 1 intends to take steps to challenge the order passed by the Tribunal on 18 April 2009, the issue of limitation may arise. However, this aspect will have to be decided by the court where such proceedings are presented. The concerned court will no doubt consider that it was not necessary for the Respondents to file any proceedings to challenge the First Order to date because the Respondent had succeeded in the Rectification proceedings. Petition allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to as the First Order ), allowed the appeals relying on the decision of the Division Bench of this court in the case of Commissioner of Sales Tax, Mumbai vs. Pee Vee Textiles Ltd. (2009) 26 VST 281 (Bom). According to the Tribunal since the Petitioner was covered by both 1988 Scheme and 1993 Scheme and in the absence of any Rules contemplated under Section 41BB of the Bombay Sales Tax Act, 1959, the pro-rata basis in respect of the tax benefit admissible cannot be applied. The Tribunal also discussed the other aspects of the case and held that the Petitioner is entitled to full tax exemption in respect of the tax assessed under the provision of the Bombay Sales Tax Act and the Central Sales Tax Act. The application of the pro-rata basis made by the Respondent was not legal and proper. The matter was remanded to the Assessing Authority to re-compute tax liability and pass a fresh order. 4. Thereafter, on 14 September 2009, Respondent No. 1-Commissioner of Sales Tax, filed six Rectification Applications in respect of judgment and orders passed by the Tribunal dated 18 April 2009. The Rectification Applications were filed invoking the power of the Tribunal under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation is correctly exercised. The decision in the case of Pee Vee Textiles was in case of Scheme of 1993 and not 1998 and this essential factual distinction was entirely missed by the Tribunal when it passed the First Order, and this error which is on the face of the record, has been corrected by the Tribunal under Section 62 of the Act. That there was no bar for pro-rata calculation as far as the Package Scheme of Incentives for 1988 was concerned, is categorically laid in the case of M/s. Balkrishna Industries Limited Vs. The State of Maharashtra Second Appeal No. 203 of 2007 dated 25.01.2008. This judgement was also not considered by the Tribunal when the First Order was passed. Therefore there is no error in the Rectification order. 10. Having considered the rival contentions, the only aspect that we have to look into is- whether the Tribunal was right in exercising power under Section 62 of the Act and analyses the facts only in this context and not for adjudicating the dispute. Section 62 of the Bombay Sales Tax Act, 1959 reads thus: 62. Rectification of mistakes :- (1) The Commissioner may at any time within two years from the date of any order passed by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case we are concerned with the application under Section 254(2) of the 1961 Act. As stated above, the expression rectification of mistake from the record occurs in Section 154. It also find place in Section 254(2). The purpose behind enactment of Section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its order dated 10-9-2003 allowing the rectification application has given a finding that Samtel Color Ltd. was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under Section 43-A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. 13. Rule of pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Commissioner of Sales Tax can not override the provisions of law u/s. 41BB which are now explained by the Hon ble Bombay High Court. We are legally bound by the law as explained by the Hon ble Bombay High Court. (emphasis supplied) The Tribunal, therefore, in its opinion, held that the decision in Pee Vee Textiles laid down a general proposition of law which applied to both 1993 and 1988 Schemes in absence of Rules. 13. Before proceeding further to analyze the impugned Rectification order, the case of the Respondent in the Rectification Application will have to be noted. The ground for rectification is stated in paragraph 04 of the Application which reads thus : 04. The Tribunal has in the decision dated 25.01.2008 given in Second Appeal No. 203/2007 in the case of M/s. Balkrishna Industries Limited, categorically held that, there is no bar for Pro-rata calculation as far as Package Scheme of Incentives 1988 is concerned and the decision in the case of M/s. Pee Vee Textiles Limited (S.A. No. 48 of 2000, dt. 17.03.2001) pertaining to Package Scheme of 1993 is not applicable to 1988 PSI. The decision of the Bombay High Court in M/s. Pee Vee Textile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d various factual distinctions made between the two schemes, i.e. of 1993 and 1988 have been omitted from consideration and reading of Pee Vee Textiles would clearly show that there is no legal proposition sought to be culled out by the Tribunal in the First Order as emerges from the decision of Pee Vee Textiles in respect of the 1988 Package Scheme of Incentives. 16. We have to keep in mind the distinction between a challenge to a order on merits and its rectification under Section 62 of the Act. The Tribunal, in the First Order, has sought to apply the general proposition of law, which according to it, flows from the decision of Pee Vee Textiles. Reading of the Tribunal decision indicates that it proceeded on the basis that the Division Bench of this court in Pee Vee Textiles has laid down the general proposition of law in respect of the effect of the absence of Rules on the application of Section 43 BB of the Act of 1959. It was held that this proposition of law would apply even under the 1988 scheme since no rules were framed. In no manner can it be said that the Tribunal, while passing the First Order, has omitted the decision of Pee Vee Textiles from consideration or has o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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