TaxTMI 
TaxTMI 
2004 (3) TMI 601
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....he finding of the Tribunal as framed by the applicant are as under : (1) In para 7(a) of the impugned order the Tribunal has observed that "as already noted, this is a highly technical matter". After recording such an authoritative finding the order proceeds to record certain findings on the merits of the case in subsequent paragraphs which appears are self-contradictory. (2) At para 7(b) a specific finding has been recorded that the goods under reference are not computer software. However, this question did not arise for consideration as the adjudicating authority has already recorded a finding in favour of the applicant by recording that the goods under reference are computer software simplicitor. There is no appeal by the department on this aspect. In the circumstances there is a mistake apparent on the face of the record. (3) At para 7(c) certain findings have been recorded on the basis of what is contained in the Annexure to the show cause notice. It is submitted that the noticee is required to meet the allegations contained in the notice and n....
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....isaged by Section 129B(2). Section 129B(2) reads as under : "The Appellate Tribunal may at any time within six months from the date of the order, with a view to rectifying the mistake apparent from the record amend any order passed by it under Section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner or the party to the appeal". 5. It is clear that what the Section envisages that the Tribunal may rectify the mistake apparent on record and not the decision reached by it in appreciation of the evidence on record. 6. We have also perused various case laws on the subject and some of which are as under : (1) In the case of Dinkar Khindria Dinesh Khindria v. CC, New Delhi the Larger Bench of the Tribunal presided over by the Hon'ble President, Justice K. Sreedharan, reported in [2000 (118) E.L.T. 77 (T-LB) = 2000 (38) RLT 442 (CEGAT - LB)], it was held that Statute does not empower CEGAT to recall and review an order validly passed by CEGAT. A decision on a debatable point of law or fact is not a mistake apparent from records. - ROM Application lies only for patent mistake and ord....
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....cts is not a mistake apparent on the face of the records. 7. Now we proceed to answer each of the point raised by the applicant. Point No. 1. The mistake said to be apparent on the face of the record according to the learned Counsel is that after reaching a finding that "this is a highly technical matter", the finding reached by the Tribunal in the subsequent paragraphs are self-contradictory. It is true that that the Tribunal has entered a very categorical finding that the issue to be decided in the case is highly technical in nature and therefore, the adjudicating authority had to be guided by expert opinion and expert opinion was therefore sought for from Shri V.V. Shastri, Head of the Computer Centre, IIT, Chennai which has been relied upon in the impugned order. Though he has adverted to the same in the impugned order and quoted certain portions of the same in the order, a copy of the report was not made available to the appellants and the report was read over to the opposite side during the personal hearing. The Tribunal therefore, held that this amounted to violations of principles of natural justice. In fact that the appellant (applicant) himself in the ground....
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....rn around and say that the Commissioner has held that the goods under reference are computer software simpliciter. It is, therefore, not understandable as to how it can be contended that there is a mistake apparent on the face of the record calling for rectification. Point No. 3. The applicant wanted to say that noticee is required to meet the allegations in the notice and not what is alleged in the Annexures to the show cause notice. In the show cause notice vide para 8, it was clearly stated that Annexures enclosed thereto may be treated as integral part of the show cause notice. The appellant has also replied to the show cause notice without questioning the Annexures. It is not understandable as to how the applicant can now turn around and say that they are not required to meet allegations in the Annexure to the show cause notice. In any event it is not understandable as to how it can be said that there is a mistake apparent on the face of record in the order of the Tribunal. Point No. 4. The reason for remanding the matter as to whether concessional rate of duty of 50% in terms of Notification No. 2/95 dated 4-1-95 can be extended to the goods has been well explained in t....
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.... ROM application. Point No. 7. It was found that when appellants have been found removing the goods clandestinely, penalty is imposable under Rule 173Q of the CE Rules. It was also found that the mandatory penalty imposed under Section 11AC was more than the maximum permissible limit and it was in those circumstances the matter was remanded for re-fixation of the penalty citing the relevant case law. As regards imposition of penalty under both the provisions i.e. Rule 173Q and mandatory penalty under Section 11AC, it was held that we have been taking a consistent view that penalty under both the provisions has to be apportioned and in the present case the lower authority has apportioned penalty under both the provisions. Further, quantum of penalty will also depend on the quantum of duty ultimately adjudged in the de novo adjudication. While remanding, it was also held that the appellants are at liberty to cite authorities against imposition of penalties under both the provisions. We are not able to understand as to how ROM lies against such finding arrived at by the Tribunal. Point No. 8. With regard to Confiscation of Plant and Machinery, it was found by the Tribunal that n....
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....ite side during personal hearing and this amounts to violation of principles of natural justice. We observe that there is force in the plea taken by the appellants in this regard more particularly when the findings arrived at by them is against them. As already noted, this is a highly technical matter and just reading over the expert opinion at the time of personal hearing cannot be taken to be given the opposite side adequate and effective opportunity to explain their stand in the facts and circumstances of this case. Therefore, on this score, the matter has to go back for re-consideration after giving copy of the expert opinion given by the IIT to the appellants. The appellants have also relied upon similar expert opinion given by Dr. R Sethuraman, Prof. and Head of the Department of Hindustan College of Engineering. This expert opinion shall also be taken into consideration by the lower authority in the de novo proceedings". 10. From the above paragraph, it is very clear that Hon'ble Member (Technical) has not applied his mind on the aspect particularly to technical nature in view of the fact the copy of the report was not furnished to the appellants and the other eviden....
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....r (J) Dated 2-12-2003 13. [Order per : C.N.B. Nair, Member (T)]. - I have perused the records and considered the submissions made by both sides on 11-2-2004 during the hearing on the Difference of Opinion referred to me. 14. The difference is as to whether the application in question filed by the appellant is within the scope of Section 129B(2) of the Customs Act. That section provides for "Rectifying the mistake apparent from the record". 15. The mistake being pointed out is that, in the remand order (for de novo consideration of the issue), the Tribunal has recorded findings on merits, which will have the effect of making the remand an exercise in futility. 16. The learned Member (Technical) is of the opinion that an application made on the above ground does not come within the scope of "rectifying apparent mistake". He has relied on several decisions [Dinkar Khindria Dinesh Khindria v. CC, New Delhi, [2000 (118) E.L.T. 77 (T) = 2000 (38) RLT 442 (LB)] and Quality Exports & Ors. v. CCE, Meerut, [2002 (150) E.L.T. 1076 (T) = 2000 (39) RLT 85 etc.] As against this, learned Member (Judicial) has expressed the view that the finding in para 7(b) of t....