- (1.) This appeal arises out of orders dated 05.09.2006 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') in the application for rectification which was filed by the Respondent -Assessee seeking rectification of earlier orders dated 22.11.2005 passed by the CESTAT. The matter pertains to the interpretation that is to be given to the judgment of this Court in 'Commissioner of Customs v/s. B.V. Jewels, 2004 taxmann.com 348 which was rendered by this Court wherein the appeal of the Revenue/Customs Authorities was allowed and it was held that the Respondent herein is liable to pay the penalty. The matter in that respect was remitted back to the CESTAT to dispose of the appeal on its own merits. Operative portion of the order reads as under: - - - "34. We find that reference was made by departmental authorities to the proviso appended to Sub -section (2) of Sec. 28 of the Act. No plea about its non -applicability was taken in the grounds of appeal before the CEGAT and though it was vehemently urged that the point was specifically taken before the Tribunal, we find no mention thereof in the CEGAT's order. The matter can be looked at from another angle. If, in reality, the CEGAT found that the action taken by the departmental authorities was beyond the period of limitation, it could have disposed of the appeals before it only on that ground without examining the merits. On the contrary, in the absence of any specific plea in the grounds of appeal, the point does not seem to have been urged before the CEGAT, particularly in view of the consideration of the merits and non -consideration of the question of limitation. That being so we find no substance in the plea of learned Counsel for the Respondents that the action taken by authorities was beyond the period of limitation. Even otherwise, the proviso to sub -section (2) of Sec. 28 is clearly applicable as the materials clearly indicate non levy and short levy on account of misrepresentation of facts by the Respondents."
(2.) On remand, the CESTAT decided the matter vide its orders dated 22.11.2005 holding that in terms of the Supreme Court's judgment, penalty is to be imposed at Rs. 2,57,90,900/ -.
(3.) It is qua this order, the rectification application was filed by the Respondent. We find that the impugned order which is passed thereon does not amount to rectification of the earlier order, but an altogether different view is taken and, in fact, it amounts to review/recall of the earlier order and substituting it by a different order. This could not have been done in the application for rectification filed by the assessee. On this ground alone, impugned order dated 05.09.2006 is set aside and the earlier order dated 22.11.2005 is restored. We may clarify that the rectification would be limited only to the redemption fine. The appeal is allowed in the aforesaid terms.;