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TMI Blog2008 (6) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... Karnataka High Court in CCE, Bangalore v. Denso Kirloskar industries [2008 (224) E.L.T. 207 (Kar.)]. 3. On the other hand, it is the contention of the ld. counsel for the applicants that the above judgment is per incuriam as it has not considered the earlier binding judgments on the very same issue. 4. We have heard both sides. Sec. 35C(2) reads as under :- "(2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard." 5. We find that in the case of Raja Benoy Kumar Sahas Roy v. CIT [1953 24-ITR 70 (Cal)], the Hon'ble Calcutta High Court was considering a referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial body and over its acting the parties have no control. In those circumstances, to construe the time limit for the submission of the case as mandatory might in a case be to deprive a part of his right to have a question of law considered by the High Court which the Act intends to be so considered and in view of that possibility, the provision should be construed as only directly so that a party may not be deprived of a statutory right for no fault of his own, but for the fault of a public body over which he has no control. Apart from the true construction of Section 66(1), it is also settled law that a party cannot be made to suffer prejudice by any default or negligence on the part of the court. It appears to us further that no question of limitation affecting the rights of the parties can really arise in circumstances like the present, because the basis of all rules of limitation is that a party, being required or being at liberty to do a certain thing within a certain time, fails to do it within the time limited, whereas, in the present case, the default or negligence is of a third party. We accordingly hold that Section 66(1), in so far as it provides that a reference sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndum 876 where the following statement appears: "Where a statute directs the doing of a thing within a certain time without any negative words restraining the doing of it afterwards, generally the provision as to time is directory and not a limitation of authority, and, in such case, where no injury appears to have resulted, the fact that the act was performed after the time limited will not render it invalid." In section 45 of the Act there are no negative words such as "no order shall be passed after the expiry of two years". Therefore, the direction that the Commissioner may, within two years, rectify the mistake is a directory provision. When a party makes an application it is the duty of the Commissioner to decide it, provided it was made within the statutory period. If the time of two years was allowed by the Commissioner to run out, he is not relieved of his duty to decide it. This was also the view taken in N.V.S. Kadirvel v. State of Madras - [1962] 46 I.T.R. 251 (Mad.) and Vithaldas v. Income-tax Officer, Kanpur - [1969] 71 I.T.R. 204 (All.)." 7. In the case of Commissioner of Income Tax v. Duncan Brothers and Co. Ltd. - 1955 (28) ITR 427 (Cal), the High Court held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, and at the same time would not promote the main object of the Legislature, such provisions should be construed as being directory only and not imperative. Mr. Ginwala contended that it need not be held that parties were absolutely at the mercy of the Tribunal and therefore if they were made to suffer for the neglect or default of the Tribunal, undeserved prejudice would be caused to them. It was said that if a party who had applied for a reference found that the Tribunal was not drawing up a case and submitting it within ninety days from the date of his application, such party might move the High Court for a writ of mandamus on the Tribunal to do its duty, that is to say, to make a reference. The difficulty that a party would have to wait till the ninetieth day in order to see if the Tribunal would yet make a reference was said to be no real difficulty, because even if the High Court was moved for a writ of mandamus after the lapse of ninety days, a writ could be issued directing the Tribunal to make a reference even at that stage, although the statutory duty required to be performed had not been performed within the time limited by the statute. I am not impressed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eviously. This provision has now been amended and instead of one year, a period of three years has been fixed. Section 34(2)(c) enacts a period of limitation and it applies both to the Commissioner initiating proceedings on his own motion and to the assessee applying for revision. It cannot be said that after the lapse of the period of one year, as it was in the year, 1956-57, or three years, as it now stands, the Commissioner's revisional powers become extinct. If proceedings are initiated by the Commissioner or commenced at the instance of the assessee within the period prescribed under the Act, the power of revision subsists till the proceedings are properly terminated. It would be anomalous to hold that the revisional power of the Commissioner becomes extinct after the period fixed, as it may happen that the Commissioner may not deal with the matter for various reasons, either because he had other work to do or be cause the assessee wanted time to place further materials before the Commissioner or for other causes. The criterion is not the point of time when the application is disposed of, or the proceedings are terminated, but the point of time when the proceedings are initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee to obtain relief by applying for revision should not depend on the hazard of the revising authority disposing of the matter within a particular period and cannot be defeated by the failure of the authority to discharge the statutory functions."- (emphasis supplied) and the full Bench of the Madras High Court approved the above view as seen from 1978 (113) ITR 837. The relevant portion of the judgment is reproduced herein below :- Section 34(1) provides for revision at the instance of both the revenue and the assessee. Though the phraseology used in section 34(2)(c) can be interpreted to provide a time limit for finalisation of the assessment by the Commissioner in exercise of his power of suo motu revision, such interpretation fails in the matter of revision at the instance of the assessee. Take a case where the assessee files a revision on the next day after the order sought to be revised was passed. The revisional authority for some reason or other keeps the matter pending for a period of three years and thereafter he dismisses the revision on the ground that the period of three years has expired. The revisional authority can thus easily defeat the assessee's remedy by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which harmonises with the context and promotes in the fullest manner the policy and object of the legislature Therefore, without giving proper effect to the scheme of the Act we cannot construe section 34(2)(c) in the context of the provisions of the Income-tax Act which provides for a different scheme of revision. Further, the word "revise" in section 34(2) is a comprehensive expression and, it does not merely denote the passing of the order in revision. The word "revise" cannot be understood to mean "pass an order in revision". Revision is a legal process and does not denote the final act of passing an order terminating the legal process. The legal process consists of various steps such as calling for the records of the proceedings, making an enquiry by the revisional authority or causing an enquiry to be made thereon, and passing final orders thereon as the revisional authority thinks fit. Therefore, the entire process commencing from the calling of the records and ending with the passing of the final order has been termed as revision in the said section. Each one of the steps in the process is a revisional process. Therefore, if any one of the steps in the process has been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations are filed within six months from the date of receipt of the final order. In today's case, the applications have been filed within the above mentioned period and are hence maintainable. The preliminary objection of the Revenue is accordingly overruled. 11. We now take up the applications for decision. 12. According to the applicant-company, a mistake apparent from the record arises in Tribunal's Final Order No. A/2105 to 2108/WZB/06 dated 1-11-06 [2007 (208) E.L.T. 38 (T)] in holding that interest is leviable and penalty is imposable on demand pertaining to anti-dumping duty, CVD, SAD and surcharge in view of the fact that, at the material time, Sec. 9A(8) of the Customs Tariff Act, 1975 did not borrow provisions of Customs Act, 1962 relating to penalty and interest; in upholding demand of Rs. 1,21,80,082/- on Ascorbic Acid & TMBA as this amount was already paid at the time of DTA removal; that upholding the duty demand of Rs. 14,99,536/- on 3700 Kg of Ascorbic Acid of IP grade is erroneous as this quantity was exported through merchant-exporter; that there is an apparent error in upholding demand of Rs. 1,52,400/- on quantity of Atenol and Famotidine which was exported an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. At the material time Sec. 9A(8) of the Customs Tariff Act, 1975 borrowed the provisions of the Customs Act, 1962 and rules and regulations made thereunder, relating to non-levy, short-levy, refunds for the purpose of levy of duty. Section 3(6) of the Customs Tariff Act under which CVD is levied provided that the provisions of the Customs Act and rules and regulations made thereunder, including those relating to drawbacks, refunds, exemption from duty shall apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. Section 3A(4) of the Customs Tariff Act, 1975 under which SAD is leviable also borrowed the provisions of the Customs Act relating to refunds of duties and exemption from duties. The above provisions did not borrow provisions relating to penalty from the Customs Act. 15. In the case of Bajaj Health & Nutrition Pvt. Ltd. v. CC, Chennai [2004 (166) E.L.T. 189], the Tribunal, set aside the interest and penalty on evasion of anti-dumping duties on the reasoning that the provisions of Customs Act, 1962 relating to non-levy, short-levy, and refunds were borrowed only for the purpose of chargeability to anti-dumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two items on clearance to DTA, we are of the view that no error arises as the above amount confirmed by the Commissioner has been upheld as he was not satisfied regarding the above claim of payment, in the absence of payment particulars furnished by the applicants. The prayer for remand for re-quantification of duty, subject to verification of payment particulars to be adduced by the applicants is, also beyond the scope of a ROM application and is therefore, rejected. 18. There is also no error in upholding duty demand on the entire quantity of Absorbic acid as the case of the department which has been upheld by the Tribunal is that the entire quantity of Absorbic acid was not used in the manufacture of any final products by the applicant-company and therefore, even if any quantity was exported through merchant-exporters, as contended by the applicants, customs duty would still be payable as Absorbic acid was cleared as such. 19. The plea that the demand on exported quantity of Antenol and Famotidine is an obvious error also does not merit acceptance, in view of the fact that the applicants did not produce satisfactory proof of export before the Commissioner and this plea is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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