J.M. INDUSTRIES Vs. COMMISSIONER OF CUSTOMS, JAMNAGAR

JUDGEMENT

(1.) THE present rectification of mistake application stands filed by the applicant in respect of the Order No. M/177/C -III/WZB/06/SMC dated 28 -6 -2006 passed by the Tribunal on a miscellaneous application filed by the applicants under Rule 40 & 41 of CESTAT (Procedure) Rules, 1982, for implementation of the Tribunals order. While disposing of the appellants application for implementation of the order, the Tribunal had observed as under : - I find that the Tribunal directed the revenue to calculate the interest amount in accordance with the law, which the proper officer has already done. If the appellant is aggrieved with the said order of the Assistant Commissioner, as regards the calculation of interest, they are free to challenge the same by filing of an appeal there against before the appropriate authority. The Tribunal, while entertaining the request for implementation of the order (which in any case stands implemented by the Assistant Commissioner, when he passes the order) cannot examine the correctness or otherwise of the quantum of interest calculated by the revenue .

(2.) APART from the fact that the alleged mistakes referred to in the application are relatable to merits of the case, which the Tribunal felt, while passing the orders earlier, that the correctness of the Assistant Commissioners order cannot be adjudged in application for implementation proceedings, it is noticed that the said application stands filed under the provisions of sub Section 2 of the Section 129B of the Customs Act 1962. The said section is to the effect that any mistake apparent from the records may be rectified in respect of the orders passed by the Tribunal under sub Section (1). Sub Section (1) of the Section 129B empowers the Tribunal to pass orders by confirming, modifying or annulling the decision or order appealed against. As such, the orders passed under sub Section (1) are orders on the main appeal and sub section (2) of the said section empowers the Tribunal to rectify the mistake appearing in such orders. As such, it is clear that the Tribunals jurisdiction to rectify the mistake apparent from records, as available in terms of provisions of sub Section (2) of Section 129B is only in respect of the orders under sub section (1) of Section, 129B. Inasmuch as in the present case, the appellant is seeking modification of the miscellaneous orders passed by the Tribunal for implementation of its earlier order passed in terms of the Rule 40 and 41 of CESTAT (Procedure) Rules, 1982, it becomes clear that the provisions of Section 129B (2) are not applicable. The ld. Advocate has not been able to show me any other sources of jurisdiction of the Tribunal to rectify the mistakes in the miscellaneous orders. In any case, I find that this is not a case for exercising inherent jurisdiction inasmuch as no mistake apparent on he face of the records is pointed out and the grounds advanced for recalling of the earlier order are on merits and seek review of the order, which is not permissible in the guise of rectification of mistake.

(3.) IN view of the above discussions, no merits are found in the ROM application. The same is accordingly rejected. If the appellant is aggrieved with the order of Assistant Commissioner passed for calculation of interest, he can definitely challenge the same before Commissioner (Appeals). The Tribunal cannot be expected to adjudge the correctness of the order of the original adjudicating authority, which is exactly what the appellant is seeking.