Commissioner of Customs vs Sunil Ghosh

By an order dated 4th September, 2001 [2003 (162) E.L.T. 830 (Cal)] the CEGAT had allowed the appeal against penalty by one Sri Sunil Ghosh on the ground that there was no direct evidence that the said Sunil Ghosh was the owner of the goods. A rectification application was filed on 29th December, 2003 that there were direct evidence to implicate Sunil Ghosh by one Manoj Kumar Paswan and, therefore, the order should be rectified. The learned CEGAT dismissed the rectification application by its order dated 15th March, 2004 on the ground that it was not an application for rectification but an application for review. This order has since been challenged.

Mr. Mukherjee appearing on behalf of the appellant has made elaborate arguments on this point which is opposed by the learned Counsel for the respondent. Section 129B permits rectification of an order by the Appellate Tribunal within the period of four years, since amended to six months, w.e.f. 11th May, 2002. However, Mr. Mukherjee contended that the order sought to be rectified was passed in September, 2001 when four years limitation was there. Therefore, the case would be governed by four years limitation.

We need not go into the said question. Section 129B empowers the Appellate Tribunal to rectify its own order and amend any mistake apparent from the record if brought to its notice by any of the parties. The power contained u/s 129B(2) is similar to Section 152 of the CPC which provides for amendment of an order or rectification of a mistake apparent from the record. But this provision does not empower the Appellate Tribunal to undertake review.

The jurisdiction to review an order is to be conferred by the statute. Unless statute confers jurisdiction for review no review can be undertaken and no jurisdiction for review can be assumed. A piece of evidence if alleged not to have been considered and a finding has been arrived at in that event it would not be a mistake rectifiable u/s 129B(2). This is a case of review since the entire finding has to be changed and the purpose would not be served by amending the order but by replacing the order or substituting the order as a whole. The effect of review is of setting aside the order and passing a fresh order upon considering the materials alleged to have been omitted to be considered. Review and rectification cannot be treated at par.

We need not go into the decisions cited by the respective parties simply for the reason given hereinbefore.

In the circumstances, we find no infirmity in the order passed by the learned CEGAT. The appeal, therefore, fails and is, accordingly, dismissed.

The interim order stands vacated. There will be no order as to costs.

All parties are to act on a signed xerox copy of this Dictated Order on the usual undertaking.