COMMISSIONER OF CUSTOMS Vs. HICO ENTERPRISES

JUDGEMENT

(1.) THE Commissioner of Customs (EP), Mumbai, has filed this application for rectification of mistake allegedly crept in, in an Order dated 20 -9 -2005 vide Order No. M/1152/WZB/2005/C -I (Referral Order) passed by the Larger Bench of this Tribunal. The matter was referred to the Larger Bench to answer the reference made by the Regular Bench over a conflicting issue as there were two divergent views in the case of Goodluck Industries v. Commissioner of Customs, Calcutta and in the case of Commissioner of Customs v. Special Steels Ltd. respectively. Accordingly, the Larger Bench has heard the matter at length and answered the reference considering the material on record. The grouse of the Department in this application is that some of the decisions citied by them were not considered by the Larger Bench; as such, it seeks indulgence of this Bench to rectify such an alleged mistake in the reference order by way of an amendment.

(2.) NOW the point for determination is whether this petition (ROM) is maintainable within the provision of Sub -section (2) of Section 129B of the Customs Act, 1962? Sub -section (1) of Section 129B deals with passing of orders by the Appellate Tribunal, which reads as follows : Sub -section (1) of Section 129B The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. A plain reading of the above provision shows that the Appellate Tribunal is empowered to confirm, modify or annual the decision or order appealed against or remand the same back to the authority, which passed such decision or order with such direction as it thinks fit for fresh adjudication. Sub -section (2) of Section 129B reads as follows : -Sub -section (2) section of 129B The Appellate Tribunal may, at any time within six months from the date of 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 Customs or the other party to the appeal. Prima facie, the question arises as to whether the order, which answers the reference made by the Referral Bench, would amount to final order within the meaning of Sub -section (1) of Section 129B of the Customs Act?

(3.) IT is pertinent to note that the Appeal No. C/1345/02 -Mum has arisen against an Order -in -Original No. CAO No. 201/2002/CAC/CC/M.C.T. dated 1 -5 -2002 passed by the Commissioner of Customs (Import), Mumbai and the same is pending for disposal before the Regular Bench of the Tribunal. On hearing the matter, the Regular Bench raised a doubt as to the applicability of the case law in view of the conflicting decisions rendered by the Tribunal earlier in two different cases, as cited supra, therefore, the matter has been referred for an answer by the Larger Bench. Accordingly, the Larger Bench, after taking into consideration all the submissions made by both sides, has passed the reference order and sent it back to the Regular Bench for disposal of the appeal. Therefore, in our considered view, the reference order made by the Larger Bench is not a final order passed in the appeal. The Regular Bench has to follow the reference order in respect of the conflicting issue and also to resolve other disputed issues in the appeal and finally dispose of the same. In other words, the reference order passed by us neither confirms, modifies nor annuls the decision or order appealed against nor does it remand the same to the authority which passed it. The Larger Bench, in its intermediate position, gave guidance to the Regular Bench by way of this reference as to which law is to be applied to the disputed issue. The Id. JDR, Shri R.B. Pardeshi, made a vain attempt to convince us that the Larger Bench has the power to rectify the alleged mistake in the reference order and placed reliance on the following decisions: