HINDUSTAN PETROLEUM CORPN. LTD. Vs. COMMR. OF CUS. (IMPORT), MUMBAI
LAWS(CE)-2015-6-5
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 04,2015

HINDUSTAN PETROLEUM CORPN. LTD. Appellant
VERSUS
Commr. Of Cus. (Import), Mumbai Respondents




JUDGEMENT

- (1.)P.S. Pruthi, Member (T)
(2.)ROM application is filed against Final Order No. A/315/2015/CB, dated 11 -2 -2015 on the ground that written submissions submitted on 29 -1 -2015 were not considered by the Bench while recording its Order. The Ld. Counsel submitted that rectification of mistake application can be allowed if the written submissions are not considered while disposing the appeal. He relied on Best & Crompton Engg. Ltd. v. Commissioner of C. Ex. Chennai - : 2000 (121) E.L.T. 272 (Tribunal -LB) and on Cadchem Laboratories v. Commissioner of C. Ex. Chandigarh - : 2015 (317) E.L.T. 388 (Tri. -Del.).
The Ld. AR stated that there is no mistake apparent on record which requires rectification by the Bench.

(3.)WE find that written submissions were submitted by the appellant and are shown to have been received in the Registry on 29 -1 -2015. But they could not be placed before the Bench while passing the Order dated 11 -2 -2015.
3.1 Under Section 129B(2) the Tribunal may amend any order with a view to rectifying any mistake apparent from the record. A rectifiable mistake must be obvious and must not be such that its rectification leads to re -writing the Order on merits. Rectification should not result in review of the Order. Therefore we agree with the Ld. Counsel that non recording of the written submissions is a mistake apparent on record. At the same time we note that in our Order, we had merely remanded the matter to the Adjudicating Authority to examine the issue of unjust enrichment on the basis of facts and judicial pronouncements. Therefore it would suffice to rectify the mistake by adding the following para as para 5.5.A after para 5.5 and before para 5.6 in our Order dated 11 -2 -2015.

"5.5A

In their written submissions received on 29 -1 -2015, the appellant stated that

(A) That whatever the duty payable/paid on crude oil imported against the said 11 advance licenses was borne by HPCL as incidence thereof was not considered in export pricing. Therefore unjust enrichment is not applicable in the case of exports made against the said advance licenses by HPCL, Mumbai Refinery.

In support of the above, a certificate dated 19 -1 -2015 from M/s. Mukesh A Singh & Associates, Chartered Accountants is enclosed.

(B) For export of goods unjust enrichment is not applicable as the duty paid cannot be recovered from the overseas importer which view gets substantiated from the following judgments:

(i) : 2005 (185) E.L.T. 19 (Guj.) - Indo -Nippon Chemicals...36 Upheld by the Hon'ble Supreme Court -, 2005 (186) E.L.T. A117 (S.C.)

(ii), 2009 (239) E.L.T. 279 (T) - Balkrishna Textiles.... Para 3

(iii), 2006 (197) E.L.T. 435 (G.O.I.) - I.O.C. Ltd. Para 6.2".

ROM application is allowed in above terms.

(Pronounced in Court on 4 -6 -2015)

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