TaxTMI 
TaxTMI 
1983 (9) TMI 300
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....n her petition dated 6-6-1983, has pointed out the following mistakes in para 2 of the petition which are reproduced as under : "(a) The findings and observations of the Tribunal in the last paragraph 4 of its order-'Sarvashri Biswaranjan as well as Mrinal Kanti did not challenge in any way the order passed by the Deputy Collector confiscating the ornaments and imposing a penalty on them. In this manner, the said order has become final against them'-was not correct as Shri Biswaranjan Maity and Shri Mrinal Kanti Maity filed separate appeals before Appellate Collector of Customs against the order dated 26-3-1983 passed by the Deputy Collector of Central Excise (Gold), Calcutta confiscating the ornaments and imposing penalty on them. The said appeals were disposed of under order No. Cal-Cex-13, 13A/82, dated 24-1-1983 in appeal case No. S5-1201/82CAP/GC by the Collector (Appeals), Customs. Further, being aggrieved by the order passed by Collector (Appeals), Customs, both Shri Biswaranjan Maity and Shri Mrinal Kanti Maity submitted separate appeals before the Customs, Excise and Gold Control Appellate Tribunal on 28-4-1983 also. (b) The findings and observations of the....
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....ing the notice u/s 79 of the Gold Control Act to the appellant. (g) The Tribunal has omitted to deal with the point raised on behalf of the appellant to the effect that the order of the Departmental authorities suffered from vital defects and the alleged statement of Shri Mrinal Kanti has not been recorded by the gold control officer himself. Further, there was no discussion about the Affidavit filed by Shri Mrinal Kanti and another one Shri Saibal Kumar Samanta and that of the appellant. Hence these contentions remained undecided. (h) The Tribunal while passing its order has omitted to look into various papers supported by evidences due to oversight and/or inadvertence." 3. Shri A.K. Chakraborty, the learned advocate, who appeared on behalf of the appellant has submitted that the observation of the Tribunal in paragraph No. 4 of its order dated 7-4-1983 which reads as - "Sarvashri Biswaranjan as well as Mrinal Kanti did not challenge in any way the order passed by the Deputy Collector confiscating the ornaments and imposing a penalty upon them. In this manner, the said order has become final against them." were neither argued by him nor by the Respond....
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....ted. The learned Counsel for the petitioner placed reliance on the following judgments in support of his contentions : 38 ITR 1 (at page 11) Mangat Ram Kuthiala v. Commissioner of Income-tax. In the said judgment, their Lordships had observed-"Now it is a settled rule that a judicial tribunal can recall and quash its own order in exceptional and rare cases when it is shown that it was obtained by fraud or by palpable mistake or was made in utter ignorance of a statutory provisions and the like." Again, "If the proceedings are in the nature of judicial proceedings, then irrespective of the class of the Tribunal, the rule will apply and if an order has been obtained from or has been made by a judicial or a quasi-judicial tribunal because of practice of fraud or because of palpable mistake or because of ignorance of clear statutory provisions and the like, it has inherent power to recall such an order, quash it, and make an order on merits and according to law in the ends of justice." 58 ITR 626 (at 631) (Allahabad H.C.) S.B. Singar Singh and Sons v. Income-tax Appellate Tribunal-wherein the Hon'ble High Court held that all courts of plenary jurisdiction have an inherent juri....
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.... have been properly availed of by a particular party as a result whereof the party did not have the opportunity of placing its case before the Tribunal, the Tribunal would have the power to decide the appeal again upon notice to the party or after giving the party an opportunity of being heard. This is a power incidental or ancillary to the jurisdiction given to the Tribunal. Further in the case of Shew Paper Exchange v. I.T.O. reported in 93 I.T.R. 186 (Calcutta) it was decided by the Hon'ble Calcutta High Court that the inherent power to rectify a wrong committed by itself, by a court or Tribunal is not really speaking, a power to review. The two powers operate in different fields and are different in essential quality or nature. The petitioner's contention was that the Tribunal should consider and take into cognisance certain fresh evidence which was not on record before the Tribunal at the time of hearing of the said appeal. This power is not ancillary or incidental to the powers of hearing an appeal. The right of review in the circumstances as claimed by the petitioner could not be assumed unless expressly given by statute or by rules having the force of statute. The lea....
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....se was adjourned to 5-9-1983. On 5-9-1983, Shri Chakraborty, Shri Bhowmick and Shri A.K. Saha again appeared. Shri A.K. Chakraborty as well as Shri A.K. Saha both had made statements on the bar and which has been duly signed by them. The same is reproduced as under : "Shri A.K. Chakraborty, Advocate is present on behalf of the appellant. He states that he did not make any argument at the time of hearing before this court as to the filing or non-filing of appeals by S/Shri Biswaranjan Maity and Mrinal Kanti Maity against the order of Deputy Collector. The observation by this court is beyond record and Shri A.K. Saha, S.D.R. has pleaded that he had also not brought it to the notice before the learned predecessors as to filing and non-filing of appeals by the said two persons and he had submitted that he has got no objection if the order is recalled. Both the sides agree that there is a patent error in the order dated 7-4-1983 of the Tribunal, in appeal No. GD (T) CAL-8/83." Sd/- Sd/- A.K. Chakraborty, Advocate A.K. Saha, Senior D.R. 5-9-1983 5-9-1983 After going through the facts, records and various judgments cited by the learned advocate, and the....