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Steel Authority of India Limited Vs. Collector of Customs and Central - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Judge
Reported in(1985)LC1134Tri(Kol.)kata
AppellantSteel Authority of India Limited
RespondentCollector of Customs and Central
Excerpt:
.....he has pleaded that if the appeal was posted for hearing on the 3rd may, 1983, on the date of hearing the learned members had brought it to the notice of the appellant that the order-in-appeal was not an appealable order and the appellant should produce collector's order and the appeal was adjourned to 13th june, 1983. shri n.mukherjee, the learned advocate has pleaded that he had lost his diary and as such he could not appear on the said date. he has submitted that the appeal was against the order passed by the superintendent, group-a, technical, central excise & customs, bhubaneswar. he has pleaded that this tribunal could not proceed with the appeal and a fresh notice of hearing had to be issued and as such it is a mistake apparent from record and pleaded that the same may be.....
Judgment:
1. Steel Authority of India Limited, F/2/1, Gillander House, 8, Netaji Subhas Road, Calcutta 700 001 had presented a Miscellaneous Petition in the open Court on the 26th day of October, 1984. When Miscellaneous Application No. 14/83 had come up for hearing, Shri N. Mukherjee, the learned Advocate had submitted that the present Miscellaneous Application is in respect of Order No. 221/CAL/83-1331-1332 dated 13th June, 1983 and had requested this Court that the fresh Miscellaneous Application should be heard along with the Miscellaneous Application No. 14/83 dated 21st September, 1983 filed by the appellant. Shri A.K.Sarkar, the learned Sr. D.R. had requested that he is not in a position to argue on the fresh Miscellaneous Application and it may be refixed on some other day. On the request of the learned S.D.R. the Miscellaneous Petition filed on 26th October, 1984 was adjourned to the 5th day of November, 1984.

2. Briefly, the facts are that this Court had passed an order on the 13th day of June, 1983 vide Order No. 221/CAL/83-1331-1332, Appeal No.ED(T) CAL 14/81. It was an ex parte order. The appellant did not appear on the date of hearing and this Court had passed an order on merits.

3. Shri N. Mukherjee, the learned advocate has appeared on behalf of the appellant. He has pleaded that if the appeal was posted for hearing on the 3rd May, 1983, on the date of hearing the learned Members had brought it to the notice of the appellant that the Order-in-Appeal was not an appealable order and the appellant should produce Collector's order and the appeal was adjourned to 13th June, 1983. Shri N.Mukherjee, the learned Advocate has pleaded that he had lost his diary and as such he could not appear on the said date. He has submitted that the appeal was against the order passed by the Superintendent, Group-A, Technical, Central Excise & Customs, Bhubaneswar. He has pleaded that this Tribunal could not proceed with the appeal and a fresh notice of hearing had to be issued and as such it is a mistake apparent from record and pleaded that the same may be rectified under Sub-section (2) of Section 35C of Central Excises & Salt Act, 1944. He has pleaded for the cancellation of the order passed by this Court.

4. In reply, the learned SDR, Shri A.K. Sarkar pleaded that there is no mistake in the order. The order passed by the Court is correct in law.

He also said that the applicant has not been able to point out any specific mistake in the order and as such the miscellaneous application filed by the appellant should be dismissed. In reply, Shri N.Mukherjee, the learned Advocate has again referred to the order passed by the Supdt. Central Excise & Customs dated 15th April, 1981 and stated that there is a mistake in the order passed by the Tribunal. The same should be rectified and order dated 13th June, 1983 should be cancelled.

5. After hearing both the sides and going through the facts and circumstances of the case we do not find any merit in the contention of the appellant. This Court had passed order No. 221-CAL-83-1331-1332 dated 13th June, 1983 after going through the records. The powers of this Court are very limited in respect of the rectification of mistake.

Sub-section (2) of Section-35C of the Central Excises & Salt Act, 1944 is reproduced as under: The Appellate Tribunal may, at any time within four years from the date of the 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 amendment if the mistake is brought to its notice by the Collector of Central Excise or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.

6. There is no provision under the Act where this Court has been empowered to review its own order. The learned Advocate's arguments that on 3rd May, 1983 the appellant was asked to file a copy of the order passed by the Collector do not help him. The learned Advocate's submission that a fresh notice of hearing should have been issued also does not help him.

7. There are similar provisions under Section-254(2) of the Income Tax Act, 1961 for the rectification of mistakes of the orders passed by the Tribunal. Sub-section (2) of Section-254 of the Income Tax Act is reproduced as under: The Appellate Tribunal may, at any time within four years from the date of the 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 amendment if the mistake is brought to its notice by the assessee or the Income tax Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard.

8. A comparison of Sub-section (2) of Section 35C of Central Excises and Salt Act, 1944 and Sub-section (2) of Section 254 of Income Tax Act, 1961 shows that provisions under both the Acts are similar and there is no provision under the Act to review its own order. It was held in the Shew Paper Exchange v. I.T.O. reported in the 93 ITR 186 that the Tribunal has no power to review its own order (The Law and Practice of Income Tax by Kanga and Falkhivala, 7th Edition, Vol-1, Page-1143). In the case of Niranjan Das & Co. v. I.T.A.T. reported in 1979 Taxation Law Report 1221/122 I.T.R 519, Hon'ble Calcutta High Court has also held that "On an application made to the Tribunal by the assessee under Section 254 (2) for rectification of mistake in the order passed by the Tribunal under Section 254(1) in appeal, the Tribunal has no power to review its order or rehear the appeal afresh and go into the merits of the appeal again. Its only duty is to ascertain whether there was any mistake apparent from the record or not. Therefore when the assessee in his rectification application alleged that there was mistake in the order because it did not correctly record the facts the Tribunal has to decide whether there was any such mistake apparent from the record or not. It has no power to go into the merits of the appeal again and come to a finding that the order was sound even on the basis of the materials sought to be relied upon." In view of the above discussion, the Miscellaneous Application filed by the appellant is dismissed.


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