Ali Nawaz Chowhan, J.--The Government of Pakistan had provided an incentive with respect to the export of Pakistani sugar and this was on the basis of zero-rated central excise duty and sales tax besides increase in the drawbacks.
2. The appellant availed this incentive exported the sugar but a Show Cause Notice was sent to him bby the Collector (Adjudication), Collectorate of Customs, Sales Tax and Central Excise, Faisalabad, asking him to pay central excise duty because he had failed to export 5% of the total sugar produced by him. In this connection, the Collector (Adjudication) passed an order in Original No, 25/FD/2000.
3. Against the said other, the appellant preferred an appeal before the Appellate Tribunal which was Bearing No, 840/LB/2000. This appeal was clubbed with 34 other appeals. All these appeals were said to have been accepted and the order in original of the Collector aforementioned dated 31.1.2001 was set aside. Copy of the order was circulated. Later, however, the appellant came to know that amongst the 35 appeals decided the order in original pertaining to him was omitted, therefore, after lapse of about 3 years proceedings were de-novo initiated against the appellant
4. The appellant agitated the matter through an application for rectification of accidental slip, whereby his order in original was excluded amongst the list of facsimile impugned orders. But this was disallowed on 14th June, 2004 on the ground simplicitor that the rectification was time barred and, therefore, his application under Section 6(5) of the Limitation Act was unacceptable.
5. The argument before this Court was that afterall it was a mistake committed by the Tribunal itself and was of the nature of a typographical error whereby the omission was made and as such it ought to have been corrected by the Tribunal at a time it came to its notice while invoking the provisions of Section 152 of the CPC. That in stricto senso this was not a case of rectification, as such involving a periphery of time.
6. That when the Tribunal had accepted the case of others, the appellant with a similar plea could not have been shown discrimination. That, anyway, the Tribunal ought to have probed into the causes of the omission of the name of the appellant in the order in original which the appellant had impugned and ought to have dismissed the petition only if satisfied from record about the factual position with respect to the non-pendency of the appeal at the relevant time.
7. Clerical or arithmetic mistakes or errors in a judgment or order arising therein from any accidental slip or omission, are to be corrected by the Court itself or on the application of any of the parties and this principle of Section 152 CPC is an exception to the rule with respect to the attaining of finality of judgments as reflected in Order XX Rule 2 of the Civil Procedure Code.
Because a judgment after it has been announced cannot be otherwise altered. A Court or a tribunal has inherent powers in this respect and the technicalities in the way are to be avoided.
8. A clerical error apparent on the record or an accidental slip is to be corrected by the Tribunal or the court committing the same whether suo moto or against a petition. Reference is made to the following case: Muslim Commercial Bank Ltd. vs. Continental Engineers Ltd. and others (PLD 1992 Lahore 261). Therefore, in cases where there has been mis-description of property in the decree, where judgment accidentally includes property of stangers or the Court fails to mention, properties relating to the decree dismisses the suit instead of decreeing it or accidentally enters the names of the deceased party instead of the names of the legal representatives, the accidental slip or error on discovery is corrected. Reference is made to the following cases: (1) Nora vs. Muhammad (1970 SCM R 133); (2) Sind Star Syndicate, Karachi vs. Synthetic Chemical Co. Ltd. and others (1980 CLC 1351).
9. The rules of limitation are ordinarily not applicable to acts which the Court can perform exercising its suo moto powers and in this connection reference may be made to the following cases: (1) Habib Bank Ltd. vs. ftikhar Ahmad and 7 others (1993 CLC 535), ,(2) Muhammad Jalat Khan and another vs. Ghulam Sarwar etc. (1986 CLC 552); (3) Pakistan Day Memorial Committee and another vs. Mian Abdul Khaliq '& Co., Civil Engineer & Contractors, Lahore (PLJ 1987 Lahore 78); and (4) Laxman Mahadev Bankar vs. Maruti Rambhau Nikam and others (AIR 1939) Bombay 389).
10. To our mind, therefore, such an error is not really a rectification as envisaged by Section 194- B(2) of the Customs Act, 1969, which reads as follows:-- "(1) ......................................
(2) The Appellate Tribunal may, at the any time within three years from the date of order with a view of rectifying any mistake apparent from the record, amend any order passed by it under sub- section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal: Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub- section, unless the Appellate Tribunal has given notice to the party of its intention to do so and has allowed a reasonable opportunity of being heard.
(3) ......................................
(4) ......................................
It is not attracted because it really does not call for amending an order. The relief sought only calls for addition of the name of the appellant in the list of appeals whereby the order under reference as passed by the Tribunal on 31.1.2001. The factum of the order is an accepted position calling for no rectification.
11. This Court, therefore, holds that such like error as the present one where the grievance is that there has been an accidental slip in including the name of the appellant in the list to which the order of the Tribunal was made applicable, is an accidental slip or at the most a clerical error which attracts the provisions of Section 152 of the Civil Procedure Code. This Court, therefore, is of the view that such like error/accidental slip is to be cured without any shadow of statutory limitation.
12. The order refusing to correct this error and impugned before this Court is therefore, set aside.
The case is referred back to the learned Tribunal with directions that while following the observations herein-above and after such probe as is necessitated with respect to the factum of the pendency of the appeal at the relevant time when the order was passed by the Tribunal and after careful verification of all other relevant facts, it may consider applying the principle laid down in the said order to the appellant as well through addition of his name in the list of cases to which the order under reference attracts.
13.With these observations, this Custom Appeal is disposed of. No order as to costs.