2021 (1) TMI 223 - AT - Customs

Tribunal rectifies error in penalty amount, sets aside inappropriate appropriation of deposited funds.

The Tribunal rectified a typographical error in the penalty amount from Rs. 60 lakhs to Rs. 60 thousand and set aside the order appropriating Rs. ... Rectification of Mistake - typographical error or not - HELD THAT:- There is no dispute regarding the first prayer made in the application as it appears to be a typing mistake. ₹ 60 lakhs mentioned in the third line of paragraph 25 of the Final Order dated September 12, 2019 requires to be deleted and replaced by ₹ 60 thousand. Rectification of mistake - prayer made in the context of appropriation of ₹ 1,00,00,000/- deposited by the applicant during investigation - Section 35C(2) of the Act - HELD THAT:- In the present case, the mistake apparent from the record that has been pointed out is non-consideration of an important contention raised by the appellant in the Final Order regarding legality of the order to the extent it appropriated the deposit of ₹ 1,00,00,000/- made by the appellant during investigation - It is not in dispute that after the premises of the appellant were searched on February 06, 2009 by the officers of the Directorate of Revenue Intelligence and during the course of investigation, the appellant deposited Rs. One crore by letters dated May 15, 2009 and May 18, 2009. Pursuant to the show cause notice dated February 02, 2010 that was issued to the appellant, an order dated January 31, 2011 was passed by the Commissioner confiscating the goods with an option to redeem the goods on payment of fine. The Commissioner also seized the Indian currency and imposed penalties upon the appellant and the firm. The customs appeals filed by the appellant and the firm before the Tribunal to assail the aforesaid order dated January 31, 2011 passed by the Commissioner of Customs were finally decided on April 27, 2016. The confiscation of goods and Indian currency was held to be bad in law. It is as a consequence of this order passed by the Tribunal, that the appellant filed an application for refund of the amount of ₹ 1,00,00,000/- that was deposited during investigation and ₹ 3,25,000/- towards the pre-deposit for filing he appeals. The final order dated October, 18, 2018 appropriated an amount of ₹ 1,00,00,000/- deposited by the appellant during the investigation against the dues of M/s Ajit Exports. Specific grounds had been taken by the appellant in the appeal against the appropriation of the amount deposited by the appellant during investigation and even in the written submissions this ground was taken. The relief claimed in the appeal was for setting aside the order dated October 18, 2018 passed by the Commissioner in its entirety and since it is this order that appropriates the amount deposited by the appellant during investigation, it cannot be urged that the appellant had not made any prayer for setting aside the order of appropriation of the amount. In such circumstances the contention advanced by the learned authorized representative of the Department that no relief had been claimed by the appellant for setting aside the order appropriating the amount cannot be accepted and the contention of the learned counsel for the appellant that the final order dated September 12, 2019 should have adjudicated upon this issue deserves acceptance. It is well said that amount deposited during investigation cannot be appropriated towards the tax dues of some other firm. The Commissioner has, however, appropriated the amount deposited by the appellant during investigation towards the tax dues of some other firm. The issue is whether this relief can be granted in the application that has been filed for rectification of mistake - A bare perusal of the aforesaid sub-section (2) of Section 35C(2) of the Act indicates that the Appellate Tribunal may, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1). Sub-section (1) provides that the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision for a fresh adjudication. What is, therefore, necessary for a mistake to be rectified is that it must be apparent from the record. Whether non-consideration of a submission relevant to the issue for determination which was placed before the Tribunal, can be said to be a mistake apparent from the record so as to be rectified under Section 35C(2) of the Act? - HELD THAT:- This issue was examined by the Supreme Court in Asstt. Commr., Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange Ltd., [2008 (9) TMI 11 - SUPREME COURT]. It was pointed out that the error apparent from the record should be so manifest and clear that no Court would permit it to remain on record. It should be pertinent and self-evident and not require any elaborate discussion of evidence or argument. It was also observed that rectification of an order stems from the fundamental principle that justice is above all and it is to be exercised to remove the error and to disturb the finality. It would, therefore, be appropriate to rectify the error that is apparent on the record by setting aside that part of the order passed by the Commissioner that appropriates an amount of ₹ 1,00,00,000/- deposited by the Appellant during investigation towards the tax dues on M/s Ajit Exports - In the third line of paragraph 25 of the Final Order, ₹ 60 lakhs shall be deleted and shall be replaced by ₹ 60 thousand - That part of the order dated October 18, 2018 that directs for appropriation of ₹ 1,00,00,000/- deposited by the appellant during investigation is set aside. The application filed for rectification of mistakes is allowed. Issues Involved:1. Rectification of a typographical error in the penalty amount.2. Legality of the appropriation of Rs. 1,00,00,000/- deposited by the appellant during the investigation.Issue-wise Detailed Analysis:1. Rectification of Typographical Error in the Penalty Amount:The appellant filed an application to rectify the Final Order dated September 12, 2019, specifically to correct the penalty amount mentioned in paragraph 25 from Rs. 60,00,000/- to Rs. 60,000/-. The Tribunal acknowledged that this discrepancy was a typographical error. The Tribunal agreed that Rs. 60 lakhs mentioned in the third line of paragraph 25 of the Final Order dated September 12, 2019, should be deleted and replaced by Rs. 60 thousand.2. Legality of the Appropriation of Rs. 1,00,00,000/- Deposited by the Appellant During Investigation:The appellant contested the appropriation of Rs. 1,00,00,000/- deposited during the investigation. The appellant argued that this amount was wrongfully appropriated against the duty liabilities of another entity, M/s Ajit Exports. The appellant had disputed this appropriation both in the appeal and in written submissions, claiming it was invalid and without jurisdiction since there was no duty demand against the appellant.The Tribunal noted that the appellant's premises were searched on February 06, 2009, resulting in the seizure of gold jewellery, gold bars, coins, and Indian currency. The appellant deposited Rs. 1,00,00,000/- during the investigation, which was later appropriated by the Commissioner against the dues of M/s Ajit Exports.A show cause notice dated November 12, 2013, was issued to the appellant regarding the appropriation, which the appellant claimed was not served. The Commissioner’s order dated October 18, 2018, imposed penalties on the appellant and appropriated the Rs. 1,00,00,000/- deposit.The Tribunal observed that the appellant had taken specific grounds against this appropriation in the appeal and written submissions but found that the Tribunal’s Final Order dated September 12, 2019, failed to address this issue. The Tribunal concluded that the non-consideration of this important contention was a mistake apparent from the record.The Tribunal emphasized that the amount deposited during the investigation could not be appropriated towards the tax dues of another firm. The Tribunal referenced Section 35C(2) of the Act, which allows for rectification of any mistake apparent from the record within six months from the date of the order.The Tribunal cited the Supreme Court's interpretation in Deva Metal Powders (P) Ltd. vs Commissioner, Trade Tax (UP) and Asstt. Commr., Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange Ltd., which clarified that a mistake apparent from the record must be obvious and not require elaborate discussion or argument.The Tribunal found that the error in not addressing the appropriation issue was apparent and needed rectification. Consequently, the Tribunal set aside the part of the Commissioner’s order that appropriated Rs. 1,00,00,000/- deposited by the appellant during the investigation towards the dues of M/s Ajit Exports.Conclusion:The application for rectification of mistakes in the Final Order dated September 12, 2019, was disposed of with the following directions:1. The penalty amount in paragraph 25 was corrected from Rs. 60 lakhs to Rs. 60 thousand.2. The order appropriating Rs. 1,00,00,000/- deposited by the appellant during the investigation was set aside.