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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
M. Gouri Shankar Murthy, K.L. Rekhi, JJ.
Jaihind Oil Mills Co. -Appellant
Versus
Collector of Customs -Respondent
Misc. Order No. 3/87-A, 3 of 1987
Decided On : 13-01-1987
M. Gouri Shankar Murthy, Member (J)
1. This is an application praying, inter alia, for :-
(i) a recall of the order dated 12-8-1986 disposing of the appeal, (ii) grant of a fresh hearing to the appellant, and
(iii) such further and other orders as may be deemed fit in the circumstances of the case.
2. The order dated 12-8-1986 sought to be recalled was our Order No. 604/1986-A by which we dismissed the Revision Application which was transferred to the Tribunal and heard as if it were an appeal. There is no question of recall of that order or grant a fresh hearing, once it had been pronounced or communicated. Recalling an order, once made, is nothing short of setting it aside. All that we could do is to amend the order with a view to rectify any mistake apparent from the record in terms of S. 129-B(2) of the Customs Act, 1962 (hereinafter, the Act). An amendment of the order does not require the order to be recalled. If there is a mistake apparent from the record, the order is merely amended without being recalled or withdrawn or set aside. A power to "amend" an order once made, does not, ex facie, extend to a recall of the order for a review and reversal thereof. But more of this later.
3. Although the application does not purport to be one for amendment of the order as provided for in the aforesaid provision and no part thereof had been required to be amended with a view to rectify an error apparent, Shri Rangaswamy, the learned advocate appearing for the applicant argued it as if it was. Accordingly, we proceed to deal with it as if it were one made in terms of S. 129-B(2) of the Act.
4. The facts in so far material are :-
(a) the applicant paid customs duty assessed under protest on 29-9-1977 in respect of an import of what was described to be "white coconut oil" in the Bill of Entry of the same date;
(b) in their letter of protest of the aforesaid date, the appellant would appear to have taken exception to a proposed assessment on the ground of valuation;
(c) a refund application was filed on 26th May, 1979 not merely on the ground of valuation but also on the ground that the imported goods being unrefined were not liable to C.V. duty;
(d) by an adjudication order dated 8th August, 1979, the refund claim in its entirety was rejected as being barred by limitation under S. 27 of the Act;
(e) an appeal against the aforesaid adjudication order was allowed in so far as the claim for refund of C.V. duty was concerned;
(f) in so far as the claim for refund on account of valuation was concerned, the learned Appellate Collector had stated that it was not pressed before him and the appeal in relation to it was dismissed;
(g) although the appellant preferred an application on 24-1-1980 to the Appellate Collector praying for an amendment of the order or for a separate order in relation to the claim for refund on account of valuation, it does not seem to have been pursued. Instead, the Revision heard and decided by us was filed.
5. In our Order No. 604/86-A, aforesaid, we adverted to all these facts and held, for the reasons mentioned therein, that the Appellate Collector was correct in saying that the said claim was not pressed before him. In the course of our order we had stated in para 1 (e) "In the course of the order dated 11-12-1979, the learned Appellate Collector had specifically referred to the claim for refund on account of excess valuation and observed that it was not pressed before him."
6. In the instant application, it was alleged, after a recapitulation of the aforesaid facts, inter alia, that :-
(a) the applicant had been urging the claim for refund on account of valuation all along;
(b) the Memo of Appeal before the Appellate Collector contained a ground in regard to it and on a perusal thereof, it would have become more clear to him that the ground was being urged and not given up;
(c) indeed, the counsel who appeared at the hearing of the Revision before us had understood that it would be allowed and the matter remanded to the A
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