Cus - That two persons subject to same investigation in identical set of facts must not be discriminated against is one of pillars on which credibility of judicial branch rests - ROM application by Revenue dismissed with costs: CESTAT
By TIOL News Service
MUMBAI, NOV 11, 2016: THE Commissioner of Customs (Export), Mumbai has filed a Miscellaneous Application seeking rectification of mistake in the interim order dated 10th August 2015 passed by the Tribunal wherein stay was granted from recovery of amounts(of drawback disbursed and penalties imposed) from the appellant.
Noting that the show cause notice had been issued by Additional Director General, Directorate of Revenue Intelligence, who, not being a 'proper officer' was held to lack jurisdiction and thus jeopardized the proceedings, the application for stay was allowed by the CESTAT just as the proceedings against another entity in the same investigation was set aside by the Principal Bench in re Hemchand Gupta.
The AR submitted that while granting the interim prayer of the appellant, the Bench appeared to have been guided by the decision in re Hem Chand Gupta & Sons and Ors. [Final Order no. C/A/50028-50031/2015-CU (DB) dated 12th January 2015] instead of following the decision of the Bombay High Court in Sunil Gupta - 2014-TIOL-1949-HC-MUM-CUS. Reliance is also placed on the decisions in Girnar Transformers Pvt Ltd - 2014-TIOL-305-CESTAT-DEL and Suzlon Infrastructure Ltd - 2009-TIOL-327-HC-MUM-ST in support of the application.
The Bench remarked that the applicant Revenue, in effect, is praying for vacating the stay on recovery of amounts confirmed in the adjudication order.
While distinguishing the cases cited by the AR the Bench inter alia observed -
+ An application for rectification of mistakes is governed by section 129B of Customs Act, 1962 and that such mistake is apparent from the records is an unavoidable pre-requisite. We are in agreement that such a rectification of mistake may, undoubtedly, be effected at any stage.
+ Error should be such as has impacted the inherent obligation to render justice and must necessarily be apparent from the records.
+ The allegation of mistake, therefore, should not be one of belief or a contrary opinion in the mind of the applicant. The test is whether the Tribunal does concur with the applicant that a mistake did occur and is such that it has jeopardized the justice of the outcome.
+ However, to alter a decision merely to alleviate the dissatisfaction of one or other party to the appeal would be a travesty of this power of remedy vested in the appellate body.
+ The applicant believes that a mistake has been committed in disregarding the decision in re Sunil Gupta relied upon by the Revenue in arguments advanced for rejection of waiver of pre-deposit.
+ We have perused the decision in re Sunil Gupta pertaining to scope of empowerment under section 28(11) of Customs Act, 1962, which came into effect on 16th September 2011 and concurs with the proposition that any 'officer of customs' designated as such can issue notice for recovery of duty. Recovery of drawback, on the contrary, is effected under rule 16 of Customs and Central Excise Duties (Drawback) Rules, 1995. The power vested in 'proper officer' and extended, by amendment, to 'officer of customs' under section 28 remains restricted to that section and not applicable to the entire Customs Act, 1962. Neither does it extend to any Rules framed thereunder.
+ That two persons subject to the same investigation in identical set of facts must not be discriminated against is also one of the pillars on which the credibility of the judicial branch rests. This article of faith would cease to be if the appellant before us were to be left worse off than others covered in the same investigation. Hence our reliance on the decision in reHemchand Gupta &Ors.
+ We, therefore, find no mistake and, hence, no cause to entertain the present application before us.
Displeasure of Bench:
Incidentally, the Bench seems to be annoyed with the behavior of the representative of Revenue while seeking the rectification.
And, therefore, in parting, the Member (T) writing for the Bench, had the following sagely advise-
++ Both sides of the bar may consider themselves competent to form an option on our orders or may be dissatisfied by the 'failure' rate but that does not confer upon them the liberty to articulate, and that too in intemperate language, which, regretfully, the representative of Revenue arrogated to himself.
++ Such lack of grace does not add to the credit of the office of the Chief Commissioner (AR) as it demonstrably reveals the failure to instill the importance of disciplined behavior and professional stoicism in the face of unfavorable outcome. More so, when the quantity of arguments and cogency of submission are not reflective of assiduous preparation, diligent comprehension, cogent presentation or inspired brilliance. Rudeness may perforce have to be tolerated in a genius but such opportunity rarely would arise for humility and docility are inevitably manifest along with genius. We do not dilate further but would prefer to leave it to the administrative authorities to show their mettle.
And the last nail in the coffin - Costs imposed:
+ Our courts and tribunals are overworked owing to manifold causes and not the least of which is the apathetic abdication of responsibility by senior levels of the tax administration in the resort to litigation. Escalating the workload without justifiable cause, or even by patent ignorance, must be checked.
+ The impulse to litigate against an order of the Tribunal that is not to its satisfaction or if the interpretation is seen as potential threat to their fief is disservice to public interest.
+ We are not sure if the present application is motivated by ill-advice, lack of knowledge, unwillingness to accept the law, overweening desire to display juristic brilliance or merely an exercise in evading responsibility.
+ We are certain that it demonstrates impulsive reaction without even the most rudimentary application of mind. To condone that is to abet in condoning irresponsible behavior and to encourage frivolous litigation.
+ To that end, we impose costs of Rs.10,000/- on the applicant-Commissioner to be paid in to the Prime Minister's Relief Fund within 45 days of receipt of the order.
The Application for rectification of mistake was dismissed.
In passing: Also see DDT 2315 & 2016-TIOL-591-CESTAT-MUM
(See 2016-TIOL-2945-CESTAT-MUM)
