SHREE KRISHNA PAPER MILLS AND INDUSTRIES LTD. vs. THE COMMISSIONER OF CUSTOMS (PREV.)
What did the High Court hold?
The High Court held that it found no good reason to interfere with the impugned order passed by the CESTAT. The Tribunal had provided detailed and weighty reasons to conclude that its earlier order contained a mistake apparent on the face of the record. Specifically, the Tribunal noted that two crucial facts – that the Commissioner of Customs (Preventive), Jodhpur had recorded a finding of requisite jurisdiction to issue the show cause notice, and that this order along with the notice was upheld by the High Court – were not brought to its notice. The Tribunal found that these material facts were omitted, and an attempt was made to persuade it to remand the matter based on the Mangali Impex Ltd. judgment, despite the consent being given against the record. The Tribunal's decision to recall the final order for rehearing on merits was therefore upheld. The High Court stated that it would still be open for the petitioner to argue before the Tribunal how the matter was covered by the Mangali Impex Ltd. judgment and thus required remand. The operative direction was that the appeals would be reheard on merits.
What were the facts?
The petitioner, Shree Krishna Paper Mills And Industries Ltd., filed a writ petition challenging an order dated January 28, 2019 (released March 5, 2019) passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT). The CESTAT had allowed a rectification application filed by the respondent-department, holding that its earlier order suffered from a mistake apparent on the face of the record, justifying the invocation of powers under Section 129B of the Customs Act, 1962. The petitioner argued that the complexity of the order indicated it was not a mistake apparent on the record. The petitioner also contended that the Commissioner of Customs (Preventive), Jodhpur lacked jurisdiction to issue notice, and this point was not addressed in a previous High Court judgment. The petitioner further argued that the department's representative had agreed to a remand based on the Delhi High Court's judgment in Mangali Impex Ltd. Vs. Union of India, not on the jurisdictional issue.
What were the issues?
1. Whether the CESTAT was justified in invoking its power under Section 129B of the Customs Act, 1962, to rectify its earlier order on the ground of a mistake apparent on the face of the record? Assessee's Arguments: - The lengthy order required for rectification indicates it was not a mistake apparent on the face of the record. - The Commissioner of Customs (Preventive), Jodhpur lacked jurisdiction to issue the notice, a point not decided by this Court in a prior judgment. - The department's consent for remand was based on the Mangali Impex Ltd. judgment regarding coverage of dispute, not on the jurisdictional competence of the Commissioner. Revenue's Arguments: - The Tribunal had detailed and weighty reasons to believe its earlier order suffered from a mistake apparent on the face of the record. - Material facts, including the Commissioner's jurisdiction and the upholding of his order by this Court, were not brought to the Tribunal's notice. - The consent for remand was given against the record, necessitating recall for rehearing on merits. - The Tribunal relied on Supreme Court judgments in Deva Metals Powders (P) Ltd., Assistant Commissioner, Income Tax, Rajkot, Honda Siel Power Products Ltd., Commissioner of Central Excise, Calcutta, Commissioner of Central Excise, Mumbai, and Commissioner of Central Excise, Belapur, Mumbai.
Which sections of the Income-tax Act were involved?
Section 129B, Section 18(2)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
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 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] 2008 (221) ELT 16(SC); Assistant Commissioner, Income Tax, 385 (SC); Honda Siel Power Products Ltd. Vs. Commissioner of Income Tax, Delhi, 2008 (221) ELT 11(SC); Commissioner of 481(SC); Commissioner of Central Excise, Mumbai Vs. Bharat Bijlee Limited, 2006 (198) ELT 489 (SC) and; Commissioner of [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
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