Collector of Cus. and C. Ex., Madurai vs Samudram

Raju, J.—This is reference made to this Court by the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench at

Madras, at the instance and on an application from the Collector of Central Excise and Customs, Madurai, u/s 130(1) of the Customs Act, 1962

(hereinafter referred to as the Act) for the determination of the following question of law :-

Whether in the facts and circumstances of the case, the ""addendum order"" dated 23-9-1983 passed by the Adjudicating Authority can be

considered to be one within the scope of Section 154 of the Customs Act, 1962"".

The relevant facts necessary to appreciate the question of law referred to the determination of this Court are that on 12-6-1981 the Customs

Authorities have apprehended some of the persons found involved in smuggling activities and as a sequel thereof, search of the house of the

respondent herein was also made resulting in the seizure of goods of foreign origin valued in all Rs. 1,31,587.50 in the shape of following items of

goods :-

SANYO Radio Cassette Tape 36 Nos.

Recorders M 6400 H (made in

Japan)

MECCA Car Stereo Cassette Tape 20 Nos.

Players

OCEAN Stereo Car Cassette Tape 54 Nos.

Players

Car Cassette Speakers 45 Pairs

Textiles (Pant Pieces) 16.75 Metres

The respondent could not produce any Customs paid receipts, import licence or any bill or voucher to prove his lawful possession of the goods of

the foreign origin and therefore the seizure was effected under a mahazar on the reasonable belief that the goods were imported illicitly into India

from foreign country without payment of duty and without the requisite I.T.C. Licence. Statements were also said to have been recorded and

thereafter adjudication proceedings were initiated by the Additional Collector of Central Excise and Customs, Madurai.

The Adjudicating Authority appears to have as found noticed in the order of adjudication, issued show cause notices dated 13-11-1981 to eight

persons including the respondent herein calling upon them to show cause within 30 days from the date of receipt of the notice as to why the goods

seized should not be confiscated to the Government under Sections 111(d) and 111(p) of the Act read with Section 3(2) of the Imports and

Exports (Control) Act, 1947 and why penalty should not be imposed on them u/s 112 of the Act. It also transpires that the show cause notices

issued were received by one Innasimuthu, Michael Raj, Francis and A. Pushparaj, on 21-11-1981 and one Mani on 23-11-1981. Since the show

cause notices intended for the respondent herein by name Samudram, Dalsingh and Gurunathan were returned undelivered by the postal

authorities, they were got served u/s 153(b) of the Act by pasting them on the doors of their residences under mahazar on 2-12-1981. It may also

be noticed at this stage that on 13-6-1981, the respondent herein also gave a statement before the Superintendent of Central Excise, Customs

Preventive Party, Tuticorin, about the whole affairs pertaining to the possession of goods in his house and the circumstances under which they were

found in his house. After according a personal hearing to one Innasimuthu, who sought for the same, the Additional Collector passed orders dated

30-10-1982, the operative portion of which is contained in paragraph 18 and it runs as follows :-

The said seized goods as described in the mahazar are hereby absolutely confiscated to the Central Government u/s 111(d) of the Customs Act,

1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947.

I hereby levy the penalties on the persons as shown below u/s 112 of the Customs Act.

(1) Dalsingh Rs. 50,000/-

(2) Innasimuthu Rs. 5,000/-

(3) Gurunathan Rs. 200/-

(4) Pushparaj Rs. 200/-

(5) Maichael Raj Rs. 200/-

(6) Francis Rs. 200/-

(7) Mani Rs. 200/-

Subsequently, the Adjudicating Authority by his order dated 23-9-1983 has passed an amendment to the earlier order dated 30-10-1982 in the

following terms :-

Whereas in the said proceedings, Shri Samudram, son of Shri Thangavel Nadar, No. 38, Melashanmughapuram, First Street, Tuticorin, had been

made a party and show cause notice issued to him and his part in the entire transaction discussed in paragraphs 12 and 13 ibid. of the said order,

due to accidental slip and omission the findings did not refer to his case. I accordingly order that the following may be added to the said order at

the places indicated below as correction u/s 154 of the Customs Act, 1962 :

After para 16 add the following :

It is also obvious that Shri Samudram has taken active part in concealing the contraband goods in his own house and therefore, rendered himself

liable to penal action"".

In para 18, under the heading ""Order"" after Sl. No. 7 relating to Mani, add the following :

Samudram ... Rs. 7,500/- (Rupees seven thousand and five hundred only)"".

The effect of the above amendment made in the purported exercise of powers u/s 154 of the Act is to indict the respondent also and impose a

penalty of Rs. 7,500/- as in the case of the others. Aggrieved, the respondent has filed an appeal before the Tribunal in Appeal No. CD (MAS)

619/83. The Tribunal by its order dated 24-3-1984 held that the amendment made in the form of an addendum by an order dated 23-9-1983 to

the earlier order of adjudication dated 30-10-1982 cannot be justified u/s 154 of the Act. In coming to such a conclusion, the Tribunal was of the

view that since in the original order of adjudication there was no finding at all against the respondent herein it would be stretching too much of the

scope of Section 154 of the Act, if one were to be permitted to supply a clear omission in the order and rectify the same as an error due to an

accidental slip. It was also of the view that even if there is an error, that error of law or fact should be so patent that by a perusal of the judgment

and the record on which it was passed, it should show that there was such an error, but so far as the case on hand is concerned, the same being a

substantial defect in the indictment or finding by reason of a clear omission, it cannot be characterised as a mere error which could be rectified.

That apart, the Tribunal also took into account the time-lag between the original order and the order passed in the form of an addendum on the

heels of a writ said to have been filed on behalf of the respondent and the grant of interim orders by this Court on such writ petition. Consequently,

the Tribunal allowed the appeal and set aside the order dated 23-9-1983. Thereupon, the Collector of Customs and Central Excise, Madurai, has

moved the Tribunal as noticed earlier for reference of the question notice the supra for the determination of this Court.

Mr. K. Jayachandran, learned Additional Central Government Standing Counsel appearing for the applicant, Collector of Customs and Central

Excise, contended that the Tribunal below committed an error in construing the scope of powers u/s 154 of the Act and that the order passed in

the form of an addendum on 23-9-1983 is quite in accordance with law, the same having rectified an error, which, according to the learned

Counsel and also as noticed in the order dated 23-9-1983 itself, was due to an accidental slip and omission. The learned Counsel endeavoured to

draw inspiration from Section 152 of the CPC said to be in pari materia provision.

Per contra, Mr. Akbar Ali Dhala, learned Counsel appearing for the respondent, strenuously argued that the powers u/s 154 of the Act cannot

be equated to the powers of the court u/s 152 of the CPC and that the reasons assigned by the Tribunal below to come to the conclusion that the

omission or lapse committed by the Adjudicating Authority in its original order dated 30-10-1982 cannot be comprehended or could be said to be

of the nature visualized for correction u/s 154 of the Act and particularly within the scope of the latter provisions"" ..... or errors arising therein from

any accidental slip or omission...."" and therefore the well-merited conclusion arrived at by the Tribunal does not call for interference by taking a

different view. The learned Counsel also contended that the omission in the original order of adjudication dated 30-10-1982 to record any finding

indicting the respondent or finding him guilty or imposing any penalty will amount to a total non-application of mind and not merely an error capable

of being corrected or rectified in exercise of the powers under Sec. 154 of the Act.

Learned Counsel appearing on either side invited our attention to the relevant provisions of the Act as also the findings recorded in the original

order as also the order issued by way of addendum on 23-9-1983 and the order of the Tribunal dated 24-3-1984 holding the issue in favour of

the respondent.

We have carefully considered the submissions of the learned Counsel appearing on either side. Section 154 of the Customs Act, 1962 reads as

follows :

Section 154. - Correction of clerical errors, etc.

Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or

errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of

customs or the successor-in-office of such officer, as the case may be.

Even a cursory perusal of the said provision along side with Section 152 of the CPC would go to show that the language adopted as also the

purport and purpose of the two provisions seem to be almost similar and the language identical. The provisions of Section 152 of the Code of Civil

Procedure, particularly the nature and scope of the powers conferred therein have come up before courts on more than one occasion for

consideration.

In Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, the Apex Court while adverting to the provisions contained in Sections 151

and 152 of the CPC and certain earlier decisions of its own observed that there is a inherent power in the court which passed this judgment to

correct a clerical mistake or an error arising from an accidental slip or omission and to vary the judgment so as to give effect to its meaning and

intention. So far as the present situation is concerned, there is a statutory provision also in the form of Section 154 of the Act it is unnecessary to

even rest our decision or any possibly controversial claim of inherent power. In the teeth of Section 154 of the Act it becomes necessary for us to

consider the scope and purport of the power with reference to the object of the power conferred therein. In adverting to Section 152 of the Code

of Civil Procedure, the Apex Court observed that u/s 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein

from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties.

Emphasis has also been made by the Apex Court that it is manifest from the specific provision contained therein that errors arising from an

accidental slip can also be corrected subsequently not only in a decree drawn up by a ministerial officer of the court, but even in a judgment

pronounce and signed by the court. The same view has been taken after adverting to the principles laid down by the Apex Court in the said

decision by a learned single Judge of this Court in a decision reported in Periasami Gounder v. Ramasami Gounder and Others 1981 T.L.N.J.

The learned single Judge while dealing with this issue, has observed as hereunder :-

To promote justice and to maintain serenity in the court records, I propose to approach from a different angle. Section 152 of Civil Procedure

Code, enable the court to vary its judgment so as to give effect to its meaning and intention. If any authority is needed the same is found in

Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, . In this case the learned Judge while upholding the validity of Ex. B-21 allowed

the appeal except as regards the items purchased, by the respondent under Ex. B-21. It is common ground that the respondent purchased S. No.

320 form S. only. The learned judge had nowhere indicated even impliedly, that S. No. 320 as a whole was excluded. On the contrary the specific

finding on detailed discussion is that S. purchased only half share in the properties left behind by his father which included S. No. 320. It stands to

reason therefore that the learned Judge should have meant by his above observation is what was in law conveyed under Ex. B-21 is half share of

S. as per the considered finding of the learned Judge. That is what the learned Judge intended, in my opinion, cannot be doubted. Then it turns out

that such a correction to the judgment and to the decree in conformity with real intention as explicit in the judgment of the learned Judge as above

should not be allowed to go unnoticed and unrectified. Such clarification to the judgment is no doubt an error capable of correction under the

provisions of Section 152, Civil Procedure Code"".

We are of the view that the principles laid down in construing Section 152 of the CPC can be safely adopted and applied in construing the

scope of Section 154 of the Act. The provisions of Section 154 of the Act thus construed on the principles noticed above would in our view entitle

the authorities specified in Section 154 functioning under the Act to correct clerical or arithmetical mistakes in any decision or order or errors

arising in such decision or orders from any accidental slip or omission. The provisions of Section 154 of the Act also as in the case of Section 152

of the CPC enables such correction ""to be made at any time"".

The question therefore next to be considered is as to whether the correction made in the form of an addendum by an order dated 23-9-1983

can be said to be of an error arising from any accidental slip or omission. The Authority which passed the order claims that the error sought to be

rectified was due to accidental slip and omission in not referring specifically to the case of the respondent Samudram. The decisions earlier noticed

would go to indicate that the power to correct an error in the judgment or order, which resulted from any accidental slip or omission before, could

be invoked in a given case. it must in the process be endeavoured to find out what really the learned Judge or the Authority which committed the

error which is sought to be rectified intended while passing the Judgment order in question. The power of correction has been held in those

decisions to be available in order to effect a correction to a judgment or order to bring the same with the real intention, as is explicit from the

judgment or order of the Judge or the authority concerned.

In Kuruvilla Thomas, Maliakel, Kanjirappally and Others Vs. State Bank of Travancore, , a learned single Judge has indicated the test for

identifying an accidental slip or omission as contemplated u/s 152. It was observed therein by the learned single Judge of the Kerala High Court

that a convenient and general test that can be applied to determine whether the correction sought for is in the field of accidental slip or omission or

not, is to examine whether the judgment as it stands represents the intention of the Judge at the time he made it and if it does, then a mistake in it

cannot be treated as an accidental slip or omission. This principle which has our approval too, if applied, it has to be ascertained as to what could

have been the situation of the Adjudicating Authority, which passed the order dated 30-10-1982 in order to find out whether the error is one,

which would fall under the category of those arising from an accidental slip or omission.

As noticed earlier, the Adjudicating Authority has issued notices to about 8 persons including the respondent to show cause as to why the

goods seized should not be confiscated and a penalty be imposed. It should not be forgotten that these goods were seized pursuant to a search of

the house of the respondent. The role played by the respondent in the offending action resulting in the seizure and the imposition of penalty cannot

be in any manner belittled or under-estimated or ignored. If that be the position could it be postulated that the Adjudicating Authority, who passed

the order dated 30-10-1982 would have consciously thought of exonerating the respondent who had also played a substantial role in the violations

committed - when the others have been indicated and visited with a penalty while confiscating the goods seized. Not only it could not be straight

away assumed that the Adjudicating Authority could have exonerated the respondent, but also it cannot seriously be disputed that no such specific

finding has also been recorded exonerating the respondent alone out of the total number of 8 persons to whom the notice of adjudication

proceedings has been issued or the reasons given in the original order could be considered to lead to such conclusion even impliedly. This would

go to inevitably disclose that the omission to advert to the name of the respondent or the omission to make reference to the respondent the stage of

recording a finding of guilt and imposing penalty ought to have been only due to accidental slip or omission.

This is obvious for the reason that even in the original order, the name of the respondent is specifically referred to in paragraph 4(v) adverting to his

statement and details of possession and seizure of the goods from him. The facts noticed supra therefore would go to show that the Adjudicating

Authority would not have ever intended to exonerate the respondent even when at the time when it passed the original order dated 30-10-1982

and noticing the mistake and error the same came to be rectified by issuing of an addendum to the earlier order by passing the subsequent order

dated 23-9-1983. The proceedings dated 23-9-1983, in our view, is well within the scope of powers conferred u/s 154 of the Act and the view

taken by the Tribunal below to the contra does not accord well with the scope and purport as also the object of the Section 154 of the Act. The

Tribunal, in our view, has proceeded in a superficial manner and the construction placed by the Tribunal on the scope of Section 154 of the Act, if

agreed to, would result in mutilating a portion of the provision and defeating the very object of such a provision. The further view taken by the

Tribunal is that the omission in this case cannot be said to be a mere error, which could be said to be patent on the order. A perusal of the order

and the records pertaining thereto does not in our view, warrant or justify the said view taken by the Tribunal. In our view, the order even on a

cursory perusal, would go to show that though the adjudication proceedings have been initiated against about 8 persons including the respondent

and notices have been served on the respondent also, there is no concrete or conclusive finding exonerating him also in the order and this is an

obvious and patent error not only of law, but also of a fact apparently starring and consequently, the Adjudicating Authority had a duty in law to

rectify such an error as and when it came to be noticed subsequently. Therefore, the order passed on 23-9-1983 is well merited and squarely

within the competency of the adjudicating authority and the order of the Tribunal taking a contrary view cannot be sustained but is liable to be set

aside.

The learned Counsel for the respondent also contended that such an order of correction could not have been passed without giving an

opportunity to show cause against the proposed rectification. If only in the original order the respondent has been exonerated, there is scope of

such a claim. We are not able to appreciate the grievance. The respondent has also been given a due show cause notice along with the others and

an opportunity to show cause against the proposed seizure, confiscation and imposition of penalty and to rectify an omission in specifically

adverting to the case of the respondent along with the others. There is no need for any further opportunity and the post decisional opportunity to

challenge such an order is by itself a sufficient safeguard and consequently we reject the said plea of grievance made on behalf of the respondent.

Equally untenable, in our view, is the grievance made about the lapse of time or the timing of the order of rectification with the filing of a writ

petition in this Court and grant of interim orders on such writ petition. Apparently, it is only at that stage that the mistake has been noticed and

having regard to the fact that the order in the form of correction has been made on 23-9-1983, to an order dated 30-10-1982, we do not

consider it to be that much of a serious and long lapse of time, particularly when the provisions of the Act specifically enable the correction entitled

to be made u/s 152 of the CPC ""at any time"", though we are conscious of the fact that even in the case of such stipulation, it becomes necessary to

exercise the power within a reasonable time.

In the above circumstances we do not consider that the lapse of time in this case is so unreasonable or long as to shock judicial conscience to

warrant our interference.

In view of the above, we answer the question referred to us for the determination in the affirmative and hold that addendum order dated 23-9-

1983 passed by the Adjudicating Authority is one well within the scope of Section 154 of the Customs Act, 1962. No costs.