By TIOL News Service

MUMBAI, DEC 31, 2015: THE importer filed a Misc. Application for rectification of mistake in the Final Order passed by the Tribunal on the ground that demand of anti dumping duty of Rs.3,53,33,940/- was confirmed for the period September, 2006 to August, 2007 whereas the Notification No. 138/2002-Cus dated 10/12/2002 had expired on 20/12/2006.

Inasmuch as the demand related to Six Bills of Entry whereas demand of Rs.3,37,47,104/- is in respect of five Bills of Entry which are pertaining to the period after 20/12/2006 and during which period anti dumping duty was not in force. And, therefore demands in respect of the said five Bills of Entry were apparently wrong and without any authority of Law. A plethora of High Court and Supreme Court decisions were cited in support.

The Special Counsel appearing on behalf of the Revenue submitted that the Applicant had neither raised this issue before the adjudication authority nor before the Tribunal and, therefore, it cannot be said that there is mistake apparent on record in the order. Inasmuch as the Misc. Application is not maintainable and liable to be dismissed.

The following case laws were relied upon -

(a) Rashtriya Chemicals & Fertilizers Ltd. - 2012-TIOL-1737-CESTAT-MUM

(b) Rashtriya Chemicals & Fertilizers Ltd. - 2011-TIOL-412-HC-MUM-CX

(c) Hindustan Zinc Ltd. - 2015-TIOL-16-SC-CX

The Bench considered the submissions and observed –

"…The fact is not under dispute that applicant have never raised this issue of non levy of anti dumping duty after 20/12/2006 either before the Adjudicating authority by way of submissions, oral argument and the ground in that respect was never raised either in the appeal before this Tribunal or during argument at the time of personal hearing. This fact has been admitted by the applicant. Since the claim of non-levy of anti dumping duty on the import made after 20/12/2006 was not raised at any stage, right from the show cause notice up to final hearing before this Tribunal in any manner, it cannot be said that there is any mistake apparent on record. In the entire records during the proceedings this plea was not taken by the applicant, it is not part and parcel of the record. Therefore the mistake could not be said to have occurred…."

Basing its conclusion on the case laws cited by the Revenue, the Bench held that it is settled that the issue which was not raised, the same cannot be raised by way of ROM application.

Adverting to the decisions relied by the appellant, the Bench observed that the High Court or Supreme Court have inherent powers to take a view whether mistake can be rectified or otherwise whereas the Tribunal being creature of the Customs Act, Central Excise Act, and Finance Act, 1994 have limited powers and only in such cases where mistake is crept from the record before the Tribunal, can only be rectified.

In fine, it was held that no apparent mistake occurred on the part of the Tribunal in its final order. The ROM application was, therefore, dismissed.

(See 2015-TIOL-2840-CESTAT-MUM)