RAM KIRPAL Vs. UNION OF INDIA

JUDGEMENT

(1.) By means of filing this petition under Art. 227 of the Constitution of India, the petitioner has prayed to quash and set aside the order dated November 28, 1997, rendered by the Customs, Excise and Gold (Control) Appellate Tribunal ('The Tribunal' for short), New Delhi, in C/ROM/77/97-NB (DB) in Appeal No. C/17/97-NB (DB), by which order dated 24th April, 1997, passed by the Tribunal in Appeal No. C/70/97 of 1997 is recalled and the case is again ordered to be listed for hearing.

(2.) The petitioner is sole proprietor of M/s. Sunder Brej Ayurvedic Pharmacy, Meerut, Uttar Pradesh and manufactures various Unani and Ayurvedic medicines. The petitioner had imported 151.060 tons Poppy-Seeds of Pakistani origin, at CFS, Adalaj, for which seven Bills of Entry dated 10-10-1995, 8-11-1995 and 12-1-1996 were filed by M/s. Jasvant B. Shah, Ahmedabad, who was Customs House Agent of the importer. Clearance of the goods imported was sought under O.G.L., on the ground that the Poppy-Seed is a "Diabetic Food". A show-cause notice was issued to the petitioner as to why the goods imported should not be confiscated. The petitioner filed reply to the said show-cause notice. The Commissioner of Customs (Preventive), Ahmedabad, by an order dated 24th January, 1997, confiscated the consignment of Poppy-Seeds as he was of the opinion that the petitioner had violated the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Clause 3 of the Import (Control) Order, 1955 and Sec. 11 of the Customs Act, 1962. However, the adjudicating authority gave to the petitioner an option to pay, in lieu of confiscation, fine of Rs. 50.00 lakhs and also imposed penalty of Rs. 10,00,000.00. Feeling aggrieved by the said order, the petitioner preferred an appeal before the Tribunal, New Delhi. The Tribunal by an order dated 24th April, 1997, confirmed the order of confiscation and imposition of penalty but reduced the fine to Rs. 15.00 lakhs and allowed the goods to be redeemed on the basis of individual bill of entry. The above-referred to order was passed as the Tribunal was of the opinion that, no evidence was produced by the department to indicate that identical goods were being sold at Rs. 50.00 to Rs. 60.00 per Kg., in the market so as to justify the fine of Rs. 50.00 lakhs. In fact, sufficient evidence was produced before the adjudicating authority to establish that similar goods were being disposed of at the rate of Rs. 50.00 to Rs. 60.00 per Kg. in the market and therefore, determination of fine was justified. Under the circumstances, the respondents preferred Rectification of Mistake Application under the provisions of Sec. 129B(2) of the Customs Act, 1962, requesting the Tribunal to reconsider the matter after correcting the mistake. The Tribunal, by an order dated November 28, 1997, has allowed the application and directed the case to be listed for hearing before it giving rise to the present petition. The order passed by the Tribunal in Rectification Application is produced by the petitioner at Annexure 'E' to the petition. The petitioner has averred in the petition that the Tribunal has no power to recall or review its earlier order, and therefore, the impugned order deserves to be set aside. It is pleaded that no ground was made out by the respondents for amendment in the order as contemplated by Sec. 129B(2) of the Customs Act, 1962, and therefore, the Rectification Application submitted by the respondents ought to have been dismissed by the Tribunal. Under the circumstances, the petitioner has filed the present petition and claimed relief to which reference is made earlier.

(3.) Mr. Hitendra Kapoor, learned Counsel for the petitioner submitted that the Tribunal has no power either to recall or review the earlier order passed by it, and as the impugned order is passed without jurisdiction the petition should be accepted. It was stressed that the remedy of the respondents was to file an appeal against the order reducing fine but as the Tribunal has no power to review its earlier order, application for rectification filed by the respondents could not have been allowed by the Tribunal. In the alternative, it was claimed that there was no mistake apparent on the face of the record, and therefore, the earlier order passed, reducing the fine should not have been reviewed by the Tribunal. In support of his submissions, learned Counsel placed reliance on the decisions rendered in the cases of (1) Madhusudan Gordhandas and Co. v. Collector of Customs, Bombay, 1987 (29) ELT 904 (Tribunal); (2) Jayhind Oil Mills Company v. Collector of Customs, Bombay, 1987 (28) ELT 305 (Tribunal); (3) Satyanarayan Laxminarayan Hegde v. Mallika Arjun B. Tirimela, AIR 1960 SC 137; (4) A. T. Sharma v. A. P. Sharma , AIR 1979 SC 1047; (5) Parsion Devi v. Sumitri Devi , 1997 Supreme Appeals Reporter (Civil) 889 and (6) Deeasha Suri v. Income-Tax Appellate Tribunal, 1997 (VI) A. D. Delhi 912.