By TIOL News Service

MUMBAI, JULY 31, 2014: AN application for rectification of mistake in the final order was filed by the applicant.

The proceedings started on an unsavory note. This is because the applicant submitted that although the order was reserved, the same had been issued without pronouncement.

Perhaps aghast at such an occurrence, the Bench directed the Deputy Registrar to look into the matter and fix responsibility of the officials concerned and report the matter within four weeks.

On the ROM application, the applicant submitted that there is a mistake apparent on record in the final order which requires rectification. Inasmuch as it is submitted that in the final order there is a finding that the goods are for industrial consumers and not for retail sale and, therefore, the benefit of Notf. 29/2010-Cus has been denied. The applicant submits that there is no evidence on record that the goods in question are for industrial use; that they are registered under the Legal Metrology Act, 2009. It is also submitted that the Revenue is not denying the benefit of the Notification on the ground that the goods are for industrial use and not for retail sale and hence there is an apparent mistake in the final order which requires rectification. Reliance is placed on the decision of the Bombay High Court in the case of NTB International Pvt. Ltd. - 2014-TIOL-262-HC-MUM-CX.

The Revenue representative inter alia submitted that the applicants are seeking to review the order in the guise of rectification of mistake application and the Tribunal has no power of review.

The Bench noted that in the cited decision it is held that rectification of mistake should be obvious and self-evident;discovery of mistake must not require a long process of reasoning; that it is the claim of the applicant that the goods are for retail and not for industrial consumers and hence they are entitled for the benefit of Notification No.29/2010-Cus.

The CESTAT observed -

++ In the Bill of Entry filed by the applicants for clearance of the goods it was specifically mentioned that the goods are "aluminium profile, hardware for furniture fittings" meaning thereby that the goods in question are for fabrication/manufacture of furniture. In these circumstances a finding is arrived at that the goods are not for retail sale.

++ The Supreme Court in the case of ITO vs Ashok Textiles (1961) 41 ITR 732 held that if a statutory provision is capable of two interpretations, taking one such interpretation cannot give rise to an error apparent from the record even if one is of the view that the other interpretation is more correct in the context.

Holding that the view taken by the Tribunal cannot be considered as a mistake apparent on record which is obvious and self-evident, the Bench dismissed the application as being without any merits.

In passing: Hopefully, the responsibility issue is sorted out amicably.

(See 2014-TIOL-1372-CESTAT-MUM)