TaxTMI 
TaxTMI 
2018 (3) TMI 170
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....he petitioner points out that in view of judgment of the Hon'ble Supreme court in Union of India Vs. Rajasthan Spinning and Weaving Mills, 2009 (238) ELT 3 and plain language of Section 11AC of the Act, penalty equal to the amount of duty evaded is mandatory and this question clearly arises from the finding recorded by the Tribunal. 5. We find merit in the submission. However, instead of directing the Tribunal to draw up a statement of case and make a reference to this Court, we take the question to have been referred and answer the same in favour of the Revenue and against the assessee. Since, the effect of judgment relied upon and mandate of the statutory provisions has not been gone into by the Tribunal, the order of the Tribunal will require re-consideration. The matter will, thus, stand remanded to the Tribunal for decision in accordance with law." 3. In remand proceedings, this Tribunal passed the order which is reproduced as under: "7. After carefully considering the submissions made by both the sides, we note that the law on the issue of quantum of penalty stands settled by the apex court. Once the provisions of Section 11AC are held to be invokable against the appel....
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....d this application for rectification of mistake on 18.10.2016 on the ground that in the remand proceedings while considering the issue of penalty this Tribunal has not considered the fact that the provisions of Section 11AC of the Act for imposition of penalty were not in the statute book before 28.09.1996, therefore, for the period prior to 28.09.1996, no penalty is imposable on the appellant and for that reason the order of this Tribunal dated 28.02.2012 be recalled. 5. The Id. AR objected the application moved by the applicant on the ground that the said application is barred by limitation and also submitted that as the order of this Tribunal has been merged with the order of the Hon'ble High Court as well as the Hon'ble Apex Court, therefore, the application for rectification of mistake is not maintainable. In support of his contention, he relied on the decision of this Tribunal in the case of Natioal Engg. Inds. Ltd, reported in 2002 (139) ELT 48 (Tri. LB) which has been affirmed by the Hon'ble Apex Court reported in 2016 (342) ELT A28 (SC). 6. In rebuttal to the arguments advanced by the Ld. AR, the Id. Counsel for the applicant submits that the issue of limitat....
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....to whether the said contentions are correct or not. 21. For the aforementioned purpose the provisions of limitation specified in sub-section (2) of Section 129B of the Customs Act would not be attracted. We, however, do not mean to lay down a law that such an application can be filed at any time. If such an application is filed within a reasonable time and if the Court or Tribunal finds that the contention raised before it by the applicant is prima facie correct, in order to do justice, which is being above law, nothing fetters the judges hands from considering the matter on merit." On going through the order of the Hon'ble Apex Court in the case of Sunitadevi Singhania Hospital Trust (Supra), we find that the limitation will be applicable to the Tribunal for taking suo-moto action for rectification of mistake but the aggrieved party can file an application for rectification of mistake at any time but showing the reasons for causing delay that there has been injustice done to them by the order of this Tribunal. The said order has been followed by the Karnataka High Court in the case of Wipro Ltd. (Info Tech Group) reported in 2012 (280) ELT 174 (Kar.) wherein, the Hon'ble....
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....erative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or capable of being laid shall be determinative of the applicability ot- merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. An order refusing special leave to appeal may be a non-speak....