ROM Application - allowability of

PJ/Case Laws/2011-12/1537

Case: COMMISSIONER OF CUSTOMS, BANGALORE v/s M/S. WIPRO LTD, (INFOTECH GROUP) Bangalore-560001

Citation: 2012-TIOL-63-HC-KAR-CUS

Issue:- Limitation – Rectification of Mistake Application – Limitation of 6 months applicable when Tribunal exercises suo-motu power.

Duty forgone under Notification No. 96/93-Cus dated 02.03.1993 – Liability to pay interest – when no condition regarding interest exists in Notification – ROM application to be allowed as error is apparent of face of record.

Brief Facts:- Assessee imported various components during the year 1994-95. The assessee claimed exemption from payment of duty under notification No. 96/93-Cus dated 02.03.1993. The assessee did not produce any documentary evidence showing that they have used the aforesaid components in manufacturing of certain items and the same have been exported. Therefore, proceedings were initiated against the assessee claiming duty foregone.

After hearing the assessee, the demand was confirmed by the Deputy Commissioner. Appeal preferred against the said order before the Commissioner (Appeals) came to be dismissed. The appeal to the Tribunal also met with the same fate.

Thereafter, an application was filed under Section 129B (2) of the Act for rectification of the mistake apparent from the record in respect to the final Order dated 31.07.2007. The mistake that was pointed out was that the notification No. 96/93 did not enable the revenue for payment of any interest in terms of the duty foregone under the said notification. Nor is there any provision under the Customs Act for the payment of any interest in terms of the duty foregone in notification no. 96/93. Therefore, the levy of interest as confirmed needs to be rectified.

The Tribunal passed the order rectifying the mistake of levying of interest. Aggrieved by the same, Revenue is in appeal before the High Court.

Appellant’s Contention:- Revenue contended that the Tribunal has virtually re-appreciated the entire material on record and has passed the order contrary to the original order which is not permissible while exercising the power under Section 129B(2) of the Act. Therefore the order requires to be set aside.

Reasoning of Judgment:- On the issue of sustainability of Tribunal’s order in respect of amendment made in Misc Order beyond the period of 6 months, the High Court noted that Tribunal held that in the case of SUNITADEVI SINGHANIA HOSPITAL TRUST Vs. UNION OF INDIA reported in 2009 (233) ELT 295 (SC) = 2008-TIOL-235-SC-CUS) as well as the Full Bench judgment in the case of JK TYRE AND INDUSTRIES LTD. Vs. ASSISTANT COMMISSIONER OF CENTRAL EXCISE, MYSORE-II reported in 2011 (266) ELT 163 (Kar) = 2011-TIOL-308-HC-KAR-CX-LB), where it has been held that the limitation of six months prescribed is applicable only if the Tribunal exercises suo moto power. The said period of limitation for disposal of proceedings for rectification is not applicable to application filed by the aggrieved party. In that view of the matter, the said substantial question of law is answered in favour of the assessee and against the revenue.

With regard to issue of sustainability of Tribunal’s order on the contention that erroneous fining is given, the High Court held that in the original order the Tribunal has categorically held that the assessee imported the components claiming benefit of exemption notification. Once the notification benefit is claimed, it is obligatory on the part of the assessee to fulfill the conditions of the exemption notification. When they produce the shipping bills as a proof to show that the imported components have been utilized in the manufacture of the goods which have been exported, there should be proper correlation. The vague statement that all the goods have been utilized for export or research purposes is not sufficient. It is obligatory on the part of the assessee to satisfy the Deputy Commissioner as to how these various components were issued for the manufacture of goods which were exported and also for R & D purposes. When the assessee is availing huge amount of duty exemption they cannot forego it very carelessly in their project. Therefore, the Tribunal held that the assessee has not taken serious efforts to comply with the customs procedure. The Tribunal did not find fault with the lower authorities for the confirmation of duty and interest. Therefore, it is clear that the Tribunal took note of the fact that the assessee imported various components claiming exemption under notification No.96/93, but did not discharge the export obligation to the satisfaction of the authorities. Therefore, the assessee is liable to pay duty foregone.

In the notification, admittedly it is not mentioned that any interest is payable on the duty foregone during the relevant period. Therefore, if only the Tribunal had carefully looked into the terms of the notification they would have realized in the notification that there is no liability to pay interest. Therefore, when it was pointed out, the Tribunal opened its eye and the said error is apparent from the face of the record. Therefore, exercising the power conferred under Section 129B of the Act, they have rectified the said error. It is not a case of reappreciation of the facts on record. By just looking into the notification and the order the error is apparent.

Decision:- Appeal dismissed.

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PJ/Case Laws/2011-12/1537

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