Should the assessee suffer for the mistake of court?

PJ/CASE LAW/2016-17/3066

Case:- COMMISSIONER OF C. EX., TIRUNELVELI Versus INDIA CEMENTS LTD.
Citation:- 2015 (325) E.L.T. 406 (Tri. - Chennai)
Issue:- Should the assessee suffer for the mistake of court?
Brief Facts:- TheFinal Order Passed by the Tribunal, came up from Tribunal allowing Revenue’s appeal although, in the open Court, it was ordered that the appeal of Revenue was dismissed as per his instruction. The assessee has verified record of the Court and found that the order appearing in the order sheet dated 1-9-2005 is with cuttings therein. The order reading as “dismissed” was first recorded and that was cut putting the line across the same. That was also authenticated by signature of the presiding member of Tribunal. Thereafter, an order recorded as “allowed” appeared in order sheet without any initial thereto. This has shaken confidence of assessee when the final order with the result of allowing appeal of Revenue is read. So assessee filed appeal against the said order.

Appellant’s Contention:- He further submits that the final order was not dictated in the open Court in the presence of the consultant Shri V. Ravindran who appeared for the case but only pronounced as “dismissed” and detailed order was to follow since an abbreviation “DOF” is recorded against the order recorded in order sheet as dismissed. Therefore, he prays for correction of the final order to result in dismissal of appeal of Revenue. According to learned counsel, once the result of the appeal was pronounced in the open Court as dismissed that should not have resulted with allowing Revenue’s appeal” recording that the order was dictated in open Court in the final order when “DOF” meaning detailed order to follow appears in order sheet.
Learned counsel further submits that it is settled law that no one should suffer for the mistake of the Court as has been held by the Hon’ble Supreme Court in the case of Hari Singh v. State of Haryana - 1993 (66)E.L.T. 23 (S.C.). Accordingly, he prays that to remove injustice to the respondent, Court should revert the order to result in dismissal of appeal.

Respondent’s Contention:- Revenue submits that what was the order passed is not reversible by this Bench.
Reasoning of judgment:- It is appreciable that no one should suffer for the mistake of the Court. But this Bench is handicapped to totally reverse the result of the appeal what that was recorded in final order referred to at the outset since the only power vested with the Tribunal is to rectify the mistake apparent from record but not to review its own order without power of review vested with it. Therefore for no rectifiable mistake apparent from the record, the application is rejected.

Decision:- Appeal rejected
Comments:- The gist of this case is that The Tribunal has no power to review the order. The Tribunal accepted that no one should suffer for the mistake of the court but they were not able to reverse the result they can only rectify the mistake apparent from record.

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PJ/CASE LAW/2016-17/3066

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