Can Commissioner (Appeals) correct mistakes in order passed u/s 35A by issuance of corrigendum?
WE received this mail from a Netizen –
A. Paragraph 4 of the Law Ministry's opinion communicated under Board Circular No. 502/68/99-CX dated 16.12.1999 titled “Adjudication — Corrigendum issued subsequent to Adjudication Order passed by departmental authorities — Advice sought from Law Ministry” reads thus -
"4. Commissioner of Customs is no doubt a quasi-judicial body required to work within the provisions of law. Neither the powers of review nor correction to the order is available under the Customs Act to the Commissioner of Customs to exercise such powers. He becomes functous officio after signing the adjudication order and, therefore, he cannot lay his hands again on the order. The corrigendum is tantamount to review of the decision which is not provided under Law, and therefore, we are of the view that this impugned order is not legally sustainable notwithstanding Section 21 of the General Clauses Act."
B.The Board Circular thereafter instructs the officers the following –
"3.The above advice of the law Ministry may please be noted by all concerned for information guidance and necessary action. Where any significant change in the order becomes necessary after the order has been issued which cannot be termed as clerical or arithmetical or typographical mistake, proposals for review may be mooted to appropriate authority instead of taking recourse to corrigendum."
I recently came across an order-in-appeal (passed in Departmental appeal) wherein although in the Discussion and Findings portion the Commissioner(A) had indicated his decision to accept the prayer made by the department, the operative portion of the order instead of mentioning “I allow the departmental appeal.” was worded “I reject the departmental appeal.”
But naturally, going by the logic contained in the Board Circular, the first option open may be of filing an appeal to the higher appellate authority viz. CESTAT. However, I feel that the Commissioner (A) is not expressly barred from issuing a corrigendum to the Order passed by him and correct the inadvertent mistake in view of the following –
+ Firstly, the Commissioner (Appeals) is not an adjudicating authority as he has been expressly excluded from the definition of an adjudicating authority as given in section 2(a) of the CEA, 1944 which reads “[(a) "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act,1963 (54 of 1963), [Commissioner of Central Excise (Appeals)] or Appellate Tribunal;". As such, the Board Circular referred to is not applicable to the facts of the case. Incidentally, unlike the provisions of Section 35C(2) of the CEA, 1944, the Commissioner (A) has not been given any express powers for passing an order on a ROM application.
+ In such a situation, it is felt that Section 21 of the General Clauses Act, 1897 comes to his aid as it allows issuance of an amendment to the earlier passed order. Section 21 reads -
"21. Power to issue, to include, power to add, to amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
I would also like to rely on the following case laws to fortify my view –
+ Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. [2008 (8) SCALE 242], the Supreme Court has held:
“17. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict.”
+ Smt. Pravita Rani Samanta v . Collector of Central Excise, Calcutta has held:-
“Undoubtedly, this court has inherent powers in view of the Supreme Court's judgment in the case of ITO v . Muhammad Kunhi and Puran Mal Kantia v . ITO (98 ITR 39). It was also held in the case Jagadambika Pratap v . ITO (76 ITR 619) that the Tribunal has inherent jurisdiction to rectify a wrong committed by itself when that wrong causes prejudice to an innocent party. There is another judgment reported in 82 ITR 314 Malchand Surana v . CIT where it was held that having decided an appeal on a preliminary issue, the Tribunal has implied jurisdiction to vacate the order in appropriate cases and hear the appeal on merits.”