SAMALKOT POWER LTD. Vs. COMMISSIONER OF CUSTOMS, VISAKHAPATNAM

JUDGEMENT

(1.) THESE are applications filed by the appellants and the respondent under Section 129B(2) of the Customs Act seeking rectification of what they consider apparent mistakes in our Final Order Nos. 511 & 512/2012, dated 31 -7 -2012 [2013 (287) E.L.T. 71 (Tri. - Bang.)]. The Final Order was passed in the captioned appeals, one filed by M/s. Samalkot Power Ltd. (SPL for short) and other filed by M/s. Reliance Infrastructure Ltd. (RIL for short).

(2.) 1 We have carefully perused the full text of our Final Order, bearing in mind the grievances raised by the appellants and the respondent in the present applications. We shall first deal with the respondents grievances. It has been submitted that the correct date of Essentiality Certificate is 9 -12 -2011 and not 23 -9 -2011 mentioned in para -9(c) of the Final Order. On a perusal of the relevant records, we note that the very caption of the certificate addressed to the Deputy Commissioner of Customs refers to Essentiality Certificate dated 23 -9 -2011. However, the date of covering letter whereunder the Certificate was issued by the competent authority is dated 9 -12 -2011. The Certificate also bears dated initials of officers subordinate to the issuing authority, in its bottom margin, and these dates are all dates of December 2011. Both sides have made submissions so as to drive home to us the respective points on the basis of the dates shown on the face of the Essentiality Certificate and the date of its covering letter. For our part, any of these dates needs no specific mention in para -9(c) of our Final Order, which merely records the submissions of SPL. On this basis, neither side can have any grievance if, from para -9(c), the word and figures dated 23 -9 -2011 are deleted. It is ordered accordingly and consequently the said para will read thus : The Essentiality Certificate duly issued by. . Power Plant. 2.2 The second grievance raised by the respondent is with regard to para -11(a) of the Final Order. In this context, we are grateful to the learned Special Consultant for the Department for having pointed out a linguistic mistake in the first sentence of the said para. At the outset, we shall correct this mistake by directing that the first word of that sentence be deleted and the second word shall start with capital alphabet. The substantive grievance of the respondent is that the submissions recorded in para -11(a) are with reference to the Honble Bombay High Courts judgment dated 24 -7 -2009 which was produced by the appellants during the hearing stage and, therefore, the last sentence of the said para does not reflect the correct purport of the submissions made on behalf of the respondent. In this context, we have also heard the counsel for the opposite side. After considering all the submissions, we are of the view that the grievance of the respondent can be redressed by substituting the words Even otherwise for the word Therefore in the last sentence of para -11(a). The corrected sentence shall read thus: Ever otherwise, SPLs application for registration of the contract under the PIR was rightly rejected. 2.3 Yet another grievance raised before us on behalf of the respondent is that the submissions recorded in paragraphs 11(b) to (m) were made against the grounds raised by the appellants. After hearing both sides, we find that there is no dispute with regard to this position. The grievance of the respondent is that this factual position is not clearly reflected in our order. We understand this grievance and are inclined to redress it by giving a caption for para -11(a) and a separate common caption for para 11(b) to (m). Accordingly, the following caption shall be inserted for sub -para (a) of para -11: Submissions vis -a -vis Honble Bombay High Courts judgment. The common caption; for the rest of sub -paras of para -11 shall be as follows : Submissions vis -a -vis grounds of appeals. 2.4 Yet another grievance raised by the respondent pertains to para -12(A)(e). In this connection, it has been submitted by the learned Special Consultant for the respondent that the subject matter of this sub -para of para 12(A) was not before the adjudicating authority and the same emanated from certain documents (opinions of three experts) produced by the appellants during the course of hearing before the Tribunal. The grievance of the respondent is that no opportunity was given to discredit the new evidence produced by the appellants. Nevertheless, in the above sub -para, it was recorded to the effect that the evidence adduced on behalf of SPL had not been contested before the Tribunal. As a matter of fact, the experts opinions/certificates produced on behalf of SPL were considered by this Bench in the context of deciding one of the substantive issues raised in their appeal viz. whether the 2400MW power project could be considered to be setting up of a new power plant. As a matter of fact, the learned counsel for the appellants had, at the bar, heavily relied on the above evidence in his endeavour to establish that the 2400MW power project should be considered to be setting up of a new power plant. The experts opinions were to the effect that the 2400MW power plant could independently function without, for any purpose whatsoever, depending on the existing 220MW power plant and its mechanical/electrical accessories. The above documentary evidence was found to be key to determination of the above substantive issue and hence reckoned for the purpose. Impliedly, the application filed by the appellants for bringing such evidence on record was allowed by the Bench. We also took note of the fact that no written objections were filed by, or on behalf of, respondent vis -a -vis the appellants application for bringing additional evidence on record. Nevertheless, the present grievance of the respondent has been carefully considered at our end. After considering the submissions of both sides, we are inclined to redress the respondents grievance by directing that the sentence reading This Evidence adduced on behalf of SPL has not been contested before us. be deleted from sub -para (e) of para 12(A).

(3.) THE ROM applications filed by the respondent are allowed to the aforesaid extent.