PRIYA BLUE IND. LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) These are two applications for rectification of mistake in Tribunal's Final Order Nos. 261 -62/02 -B, dated 28 -5 -2002 [2002 (148) E.L.T. 809 (T)].

(2.) Shri V. S. Nankani, learned Advocate, submitted that the Appellate Tribunal following the decisions in the case of Kopran Limited v. CC, New Delhi, 2002 (141) E.L.T. 694 (Tri -Del.) = 2002 (50) RLT 286 dismissed the appeals filed by them holding that as the assessments were finalised on the Bill of Entry against which no appeal was filed, the appeals are not maintainable. He, further, submitted that the decision in the case of Kopran Limited was given relying upon the judgment of the Supreme Court in the case of Flock (India) Pvt. Limited, 2000 (120) E.L.T. 285 (S.C.); that the Hon'ble Tribunal failed to appreciate the fact that the Supreme Court's judgment was in Central Excise matter wherein the assessment is post -removal activity; that therefore the said judgment is wholly inappropriate and may not fit the Customs scheme for assessment and refund; that Section 27 of the Customs Act, dealing with the refund of customs duty, clearly provides for filing of claim for refund of duty paid in pursuance of an Order of assessment; that it is thus evident from the wording of Section 27 of the Customs Act, refund claim can be filed if the duty has been paid in pursuance of an Order of assessment; that the said phrase "in pursuance of an Order of assessment" does not find place in Section 11B of Central Excise Act dealing with refund matters; that if the refund claim cannot be filed without challenging assessment on Bill of Entry, then this phrase would become redundant; it is settled law that legislature does not use any words unnecessary in the provisions of law; that thus an error has crept in the Tribunal Order which requires rectification by recalling the Order.

(3.) Opposing the prayer, Shri Vikas Kumar, learned SDR submitted that there is no mistake on the face of the record which requires to be rectified under the provisions of Section 129B of the Customs Act; that the mistake apparent on the face of record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions; that the decision in the case of Flock (India) Pvt. Limited is applicable to a case under the provisions of Customs Act also if the assessment on Bill of Entry which is an appealable Order has not been challenged; that reliance upon the Supreme Court's decision cannot be a subject -matter of rectification of mistake.