1. Heard Sri Nishant Mishra, learned counsel for the petitioner. None appeared on behalf of respondents though this case has been called in revised, therefore, I proceed to hear the matter finally at this stage.
2. The petitioner, M/s Polytex Corporation Ltd. (hereinafter referred to as the "Company") is engaged in manufacturing and export of Polyester film. It comes under Chapter 39 of Central Excise Tariff. It exported polyester film to various countries on payment of Central Excise Duty under claim of rebate in terms of Rule 18 of Central Excise Rules, 2002 (hereinafter referred to as the "Rules, 2002). It is said that petitioner exported finished goods on payment of excise duty under Rule 18. The excise duty was paid on finished goods export. The petitioner did not claim any rebate on inputs under Rule 18 of Rules, 2002. The Assistant Commissioner allowed rebate to petitioner by various orders dated 27.06.2005, 13.07.2005, 21.07.2005 and 12.08.2005 for a total sum of Rs. 1,08,35,272/-. The Commissioner, Central Excise Meerut-II directed the Assistant Commissioner to file appeal against aforesaid orders granting rebate to petitioner. Petitioner filed objection stating that condition No. 5 of Notification No. 43/2002-Cus dated 19.04.2002 has not been infringed by him and they have not availed any input stage benefit under Rules 18 or 19 of Rules, 2002. The appeals were allowed and orders of rebate were rescinded by Commissioner (Appeals) vide order dated 22.11.2006. Thereagainst petitioner preferred revision to Government of India, Ministry of Finance which has also been rejected vide order dated 24.08.2009.
3. Learned counsel for the petitioner submitted that dispute relates to export of goods made during December, 2004 to March 2005. The rebate was claimed under custom Notification No. 93/2004-Cus dated 10.9.2004, as corrected by corrigendum Notification No. 605/50/2005-DBK dated 17.05.2005. The respondents, however, have held that corrigendum having been issued on 17.05.2005 it was not applicable to transactions which took place in December, 2004 to March, 2005 and the corrigendum has to apply prospectively, therefore, entitlement of petitioner for rebate will have to be considered in the light of custom Notification No. 93/2004-Cus dated 10.09.2004 and on the basis thereof only and without looking into the corrigendum notification dated 17.05.2005.
4. It is contended by Sri Nishant Mishra, learned counsel for the petitioner that this view taken by respondents is patently erroneous and illegal inasmuch as the notification dated 17.05.2005 was not an amendment but a corrigendum, meaning thereby earlier notification dated 10.09.2004 had some apparent mistake which was corrected by corrigendum notification dated 17.05.2005 and, therefore, corrigendum notification will have retroactive effect else the very purpose of corrigendum will frustrate.
5. In my view, the submission advanced on behalf of petitioner has force and deserved to sustain.
6. The notification dated 17.05.2005 reads as under:
"Notification:605/50/205-DBK(Corrigendum) dated 17-May-2005 Advance licence - Corrigendum to Notification No. 93/2004-Cus.
In condition (v) of opening paragraph of the Notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 93/2004-Customs, dated the 10th September, 2004, published in the Gazette of India (Extraordinary), vide GSR 606(E), the words & figures "under rule 18" shall be corrected to read as "under rule 18 (rebate of duty paid on materials used in the manufacture of resultant product)".
7. So it clearly says that it is a corrigendum to notification No. 93/2004-Cus dated 10.09.2004. It is not an amendment or modification or alteration in the earlier notification so as to make a change therein as such but when the author of a document makes a correction, it relates back to the date of initial authoring for the reason that correction means whatever written was not correct or there was some mistake which need be corrected. A correction or corrigendum precedes an inherent admission on the part of the person making correction/issuing corrigendum that the initial document or initial authored material has some mistake and admitting this mistake the same is being rectified/corrected and hence a correction/corrigendum.
8. Normally the word "corrigendum" is used when correction is made in a printed matter which has already disclosed to public and, therefore, mere handwritten correction or draft or finalized matter would not be sufficient but correction as such has to be notified separately and that is how it is termed corrigendum.
9. The meaning of "corrigendum" is "an error to be corrected especially an error in print". The word "corrigenda" is used in a list of corrections of errors in a book or other publications. The origin of the word "corrigendum" is said to be from Latin from the phrase, "neuter of corrigendus, gerundive of corrigere to correct".
10. In various dictionaries also the word "corrigendum" has been defined.
11. In "Oxford Advanced Learner's Dictionary" Seventh Edition at page 343 word "corrigendum" is defined "something to be corrected, especially a mistake in a printed book".
12. In "The Concise English Dictionary", 1982 Edition, page 253 meaning of "corrigendum" is "an error needing correction, esp. in a book".
13. In "Black's Law Dictionary" Eighth Edition at page 370, meaning of "corrigendum" is, "an error in a printed work discovered after the work has gone to press".
14. In "Legal Dictionary" alongwith Foreign Words and Maxims including Latin Maxims by Prafulla C. Pant, Second Edition, Reprint 2007, at page118, the meaning of "corrigendum" is, "a thing to be corrected, esp. an error in a printed book".
15. This Court has also considered the nature of corrigendum in Commissioner, Sales Tax, U.P., Lucknow Vs. Dunlop India Limited, 1994(92) STC 571 and said:
"In my opinion, Notification No. 4841 is in the nature of a correction (corrigendum) and, therefore, it dates back to the date of the notification corrected thereby, namely, June 11, 1974, on which date Notification No. 3867 was issued. A correction is a correction only when it dates back to the original order or the proceeding as the case may be. It ceases to be correction if it is effective from the date of its issuance; it then becomes an amendment. This intrinsic nature of concept of correction cannot be lost sight of.
16. The Apex Court has also observed in State of Rajasthan and another Vs. J.K. Udaipur Udyog Ltd. and another, 2004(7) SCC 673 that the use of word "corrigendum" indicates the intention of correction and to rectify that the State Government thought had been erroneously done.
17. Taking this view a learned Single Judge in Jugilant Organosys Ltd. Vs. Assistant Commissioner of Central Excise, Mysore-III, 2012(276) ELT 335 (Kar.) has also said:
"A corrigendum is nothing but a correction and it relates back to notification itself."
18. I may notice hereat that even in the matter of statutes whenever a subsequent provision is made with a specific and clear purpose of supplying an obvious omission in the former statute, the subsequent one has been held to relate back to the time when previous one was enacted. In the context of clarificatory provisions this principle has also been followed.
19. In Government of India Vs. Indian Tobacco Association, 2005(187) ELT 162 the Supreme Court in para 27 of the judgment observed:
"27. There is another aspect of the matter which may not be lost sight of. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act was passed [See Attorney General vs. Pougette (1816) 2 Price 381 : 146 ER 130]"
20. It is true that an exemption notification must be given a strict meaning. (See Tata Iron & Steel Co. Ltd. vs. State of Jharkhand and Others, (2005) 4 SCC 272 and on Commissioner of Central Excise, Chandigarh-I vs. Mahaan Dairies, (2004) 11 SCC 798). But here it is not the case of application of an exemption notification itself but the effect of corrigendum notification issued in respect of an earlier exemption notification admitting apparent omission therein necessitating the issuance of correction/corrigendum notification. Therefore, principle applied herein would be different.
21. Learned counsel for the petitioner relied on another principle that a beneficial circular should be given retroactive effect while oppressive circular has to be applied prospectively and relied on Commissioner of Central Excise, Bangalore Vs. Mysore Electricals Industries Ltd., 2006 (204) ELT 517 (SC) and Suchitra Components Ltd. Vs. Commissioner of Central Excise, Guntur, 2007(208) ELT 321 (SC) but I do not find application of above principle in the case in hand since the matter does not relate to an independent beneficial circular but here the point in issue is the applicability of a corrigendum notification, whether it will relate back to the date of order in which corrigendum has been made or from the date when corrigendum itself was issued so as to allow the admittedly wrong order to continue for some time till corrigendum is issued. Obviously, such an effect cannot be allowed to be given. I have no manner of doubt that a corrigendum will relate back to the order of the order in which correction has been made.
22. In my view the corrigendum notification dated 17.05.2005 itself says that it is a corrigendum in notification dated 10.09.2004 and, therefore, there is no reason to treat this corrigendum effective from the date the notification dated 10.09.2004 was issued wherein this corrigendum (correction) has been made. The respondents-authorities having taken a contrary view, therefore, have committed a manifest error of law. The impugned orders, therefore, cannot be sustained.
23. In the result, the writ petition is allowed. The revisional order dated 24.08.2009 confirming Commissioner (Appeals) order as also the Commissioner (Appeals) order dated 22.11.2006, are hereby quashed and the orders granting rebate passed by Assistant Commissioner are hereby restored and confirmed.
24. No costs.
Order Date :- 11.04.2014 AK