SHREE KRISHNA PAPER MILLS AND INDUSTRIES LTD. V. THE COMMISSIONER OF CUSTOMS (PREV.)

CW/5126/2019

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The case involves Shree Krishna Paper Mills And Industries Ltd. challenging an order by the Customs, Excise & Service Tax Appellate Tribunal, which allowed a rectification application by the respondent, the Commissioner of Customs (Preventive), Jodhpur. The Tribunal's rectification was based on a mistake apparent on the face of the record concerning its jurisdiction and the competence to issue notices under Section 18(2) of the Customs Act, 1962. The petitioner argued that the Tribunal's need to issue a lengthy order indicated that the mistake was not apparent and required detailed discussion, thus not justifying the rectification. The High Court of Rajasthan dismissed the writ petition, agreeing with the Tribunal's decision to re-examine the case on its merits.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 742618 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 12-03-2019
• Assessment Year: misc
• Other Referred Cases: Mangali Impex Ltd. Vs. Union of India, Deva Metals Powders (P) Ltd. Vs. Commissioner, Trade Tax (UP), Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd., Honda Siel Power Products Ltd. Vs. Commissioner of Income Tax, Delhi, Commissioner of Central Excise, Calcutta Vs. A.S.C.U. Ltd., Commissioner of Central Excise, Mumbai Vs. Bharat Bijlee Limited, Commissioner of Central Excise, Belapur, Mumbai Vs. RDC Concrete (India) P. Ltd.
• Laws Referred To: Customs Act, 1962
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: TANVEER AHMED
• Keywords: Customs; Jurisdiction; Rectification Application; Mistake Apparent on the Face of the Record
• Section: 18(2); 129B

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D. B. Civil Writ Petition No. 5126/2019 IN THE MATTER OF:- Shree Krishna Paper Mills And Industries Ltd., Represented By Shri A.K. Sharma, Sr. Vice President (Legal & Corporate Affairs), Having its Head Office At 4830/24, Ansari Road, Prahlad Street, Darya Ganj, New Delhi-110 002. ----Petitioner Versus The Commissioner of Customs (Prev.), (Customs Commissionerate), Jodhpur, Hqrs. at NCR Building, Statue Circle, C-Scheme, Jaipur- 302 005 (Rajasthan). ----Respondent For Petitioner(s) : Mr. Tanveer Ahmed. HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Order 12/03/2019 This writ petition has been filed by the petitioner challenging order dated 28.01.2019 (released on 05.03.2019) passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short ‘the Tribunal’). We have heard learned counsel for the petitioner at some length and gone through the impugned order by which the rectification application filed by the respondent-department has been allowed. The Tribunal in its order has held that order earlier passed by it suffered from mistake apparent on the face of the record so as to justify invocation of its power under Section 129B (2 of 4) [CW-5126/2019] of the Customs Act, 1962 (for short ‘the Act’) so as to rectify such mistake. Learned counsel for the petitioner has submitted that the very fact that the Tribunal was required to pass a lengthy order goes to show that it was not a mistake apparent on the face of the record, therefore, it required a detailed discussion to discover the mistake. Such mistake cannot be described as mistake apparent on the face of the record. Various judgments relied by the Tribunal are not applicable to the facts of the present case. It is submitted that the Commissioner of Customs (Preventive), Jodhpur did not have the jurisdiction to issue notice and this question was not at all gone into by this Court in vide judgment dated 27.01.2015 rendered in Writ Petition No. 2668/2007. It is argued that authorised representative of the department had agreed for remand of the matter on the aspect of the coverage of the dispute by judgment of Delhi High Court in Mangali Impex Ltd. Vs. Union of India, 2016 (335) ELT 605 (Del.) and not on the question whether Commissioner of Customs (Preventive), Jodhpur had the competence to issue notice under Section 18(2) of the Act. Therefore, the very foundation of the impugned order is wrong. The Tribunal has given detailed and weighty reasons to support its view that the order earlier passed by it suffered from mistake apparent on the face of the record. Two facts-that the Commissioner of Customs (Preventive), Jodhpur after detailed discussion on the issue recorded finding that he had requisite jurisdiction to issue show cause notice and that order of the Commissioner along with show cause notice was subjected to (3 of 4) [CW-5126/2019] challenge before this Court, which had upheld the same, were not brought to its notice. The Tribunal therefore held that these were material facts which were required to be brought to its notice at the time of hearing of the appeals and without bringing these facts to its notice, attempt was made to persuade the Tribunal to remand the matter to the Adjudicating Authority as in some cases, matters were remanded in view of the judgment of Delhi High Court in Mangali Impex Ltd. (supra). The Tribunal therefore held that consent was given by the authorised representative of the department against the record which necessitated recall of the final order for rehearing of the appeals on merits. The Tribunal in support of its view relied upon the judgment of the Supreme Court in Deva Metals Powders (P) Ltd. Vs. Commissioner, Trade Tax (UP), 2008 (221) ELT 16(SC); Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd., 2008 (230) ELT 385 (SC); Honda Siel Power Products Ltd. Vs. Commissioner of Income Tax, Delhi, 2008 (221) ELT 11(SC); Commissioner of Central Excise, Calcutta Vs. A.S.C.U. Ltd., 2003 (151) ELT 481(SC); Commissioner of Central Excise, Mumbai Vs. Bharat Bijlee Limited, 2006 (198) ELT 489 (SC) and; Commissioner of Central Excise, Belapur, Mumbai Vs. RDC Concrete (India) P. Ltd., 2011 (270) ELT 625 (SC). Having given our anxious consideration to submissions advanced by learned counsel for the petitioner and upon perusal of the impugned order passed by the Tribunal, we do not find any good reason to interfere with the impugned order, as in any case the appeals are to be reheard now on merits. It would be still open to the petitioner to canvass before the Tribunal as to how this (4 of 4) [CW-5126/2019] matter is covered by the judgment of Delhi High Court in Mangali Impex Ltd. (supra) and therefore was required to be remanded back to the Adjudicating Authority. If the Tribunal is persuaded, in that event, it would be passing order on merits of the case rather than on the basis of consent of the parties. In view of above, there is no merit in this writ petition and the same is accordingly dismissed. Stay Application No. 4797/2019 also stands dismissed. (GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J Manoj/70 "