TaxTMI 
TaxTMI 
1987 (8) TMI 216
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....Duty at 15% ad valorem amounting to Rs. 382.17 only) rejecting the element of agent's commission claimed. [The instant revision application now heard as an appeal does not relate to the inclusion of the agency commission in the assessable value. It does not also relate to the assessable value determined in respect of NPK 14-35-14]; (c) between 1-10-1975 and 31-12-1975, when the aforesaid price-list was in operative force, the appellant would appear to have cleared an aggregate quantity of 26,425.05 M.T. out of which 15,445 M.T. were cleared into their depots at various places and 10,980 M.T. directly to independent wholesale dealers. Out of this quantity of 10,980.05 M.T., a quantity of 86 M.T. were cleared direct from the appellant's factory; (d) notwithstanding the earlier approval, a notice dated 7-9-1976 was issued to the appellant alleging, inter alia, that - (i) the normal price which should have been declared by the appellant was Rs. 3,000/- per M.T. rather than Rs. 2,930/- per M.T. seeing that the latter price was charged in very stray cases of clearance, (ii) the appellant had thereby contravened, t....
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....applicant) is correct. 4. Applicant's learned Advocate has now stated that the order in appeal dated 22-8-1986 passed by me is not correct inasmuch as I ought to have accepted the price of Rs. 2,930/- available at the factory gate for the goods in question. It is immaterial whether the sales were scanty. This ratio has been laid down by the Hon'ble Supreme Court in the case of A.K. Roy v. Voltas Ltd., (1977 E.L.T. J.177-para 20). It has been observed by the Hon'ble Supreme Court in the said case in para 20 that "quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. There are facts that such sales may be few or scanty does not alter the true position". Learned Advocate has stated that this law laid down by the Hon'ble Supreme Court in Voltas case has not undergone any change. In effect it has been confirmed by the Hon'ble Supreme Court in its judgment in the case of Bombay Tyre International Ltd. (1983 E.L.T. 1896) wherein it has been observed that the scheme of valuation of excisable goods under old Section 4 and new Section 4 are not materially different. He invites special attention to para 31 of the said report of the latter judgment which read....
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....Learned SDR, on the other hand, has urged that all arguments including the judgments' ratios laid down in the cases of Voltas and Bombay Tyre International Ltd. had been taken into account by the Tribunal before passing the order dated 22-8-1986. The question, therefore, is not one of rectification but of interpretation of law as laid down by the Supreme Court in the aforesaid two cases. The proper course, therefore, for the applicants is to file an appeal to the Supreme Court and not by way of rectification application. Application under Section 129B(2) of the Customs Act (corresponding to Section 35C of the Act) can be entertained by the Tribunal only if there is an obvious and patent mistake, either of fact or of law as has been laid down by the Tribunal in the case of Jai Hind Oil Mills Co. v. Collector of Customs [1987 (28) E.L.T. 305]. The Tribunal in the said case has relied upon a judgment of the Supreme Court in the case of T.S. Balaram v. Volkart Bros. [1971 82 ITR 50 S.C. = AIR 1971 S.C. 2204]. Voltas case has been pronounced under old Section 4 and therefore, ratio of that judgment cannot be applied to the provisions of new Section 4 which in term is quite different. L....
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....% of the total sales during the relevant period under consideration which is far less than 3 to 4% of the sales not relied upon by the Karnataka High Court in the case referred to above. In view of the aforesaid pleas, learned SDR stated that the ROM application deserves to be dismissed. 7. We have carefully considered the pleas advanced on both sides. We observe that the application under Section 35C of the Act must relate to patent and obvious mistake which is apparent from the record. The mistake must not relate to debatable points of law or to facts which are required to be investigated further or which are to be arrived at by tortuous process of reasoning. We can do no better than to quote the observation of the Hon'ble Supreme Court in the case of T.S. Balaram v. Volkart Bros. referred to above. Para 8 of AIR 1971 S.C. 2205 observes as follows :- "8. A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on which there may conceivably be two opinions..... A decision on debatable point of law is not a mistake apparent from the record." An observation by the Hon'ble Supreme ....