TaxTMI 
TaxTMI 
2009 (5) TMI 580
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....al, pointing out that certain mistakes apparent from the record have occurred in the order of the Tribunal and has requested for rehearing of the appeals. The mistakes as pointed out by the assessee in its miscellaneous applications are reproduced hereunder: "A. The Tribunal held that 'tobacco preparation' would cover 'all those preparations and products, which are prepared using tobacco if the properties of tobacco are retained in the preparation without undergoing any metamorphosis as a result of addition of other ingredients'. The applicant was not informed which are these properties and how they are retained. There is no material on record to show that this test is fulfilled in the present case. Had it been brought to the applicant's notice that this test was to be applied and why, one would have queried what are these properties. Further, insofar as the characteristic of tobacco being carcinogenic is concerned, it is a well established fact that mixing of oils and perfumes in the preparation of Gutka goes to reduce the carcinogenic effect of tobacco. Disposal of the appeal without putting this test to the applicant and without deciding whether Gutka fulfils this test disclo....
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....he expression tobacco preparation would cover the entire universe of products which have any quantum of tobacco in it. If the Tribunal would have put this test to the applicant it would have pointed that this may not be a proper test. E. The Tribunal referred to the decisions in Royal Hatcheries vs. State of Andhra Pradesh AIR 1994 SC 666 dealing with the interpretation to be placed on the phrase 'such as' and SIL Import USA vs. Exim Aides Silk Exporters AIR 1999 SC 1609 on the concept of 'updating legislation' without bringing them to the notice of the applicant. F. After holding that 'chewing tobacco' means something, which one neither smokes nor swallows the Tribunal has concluded that Gutka is to be regarded as chewing tobacco. It failed to appreciate that as rightly pointed out by itself tobacco consumption in the form of chewing tobacco can never be 'swallowed'. However, it is an accepted fact that Gutka can be swallowed by its consumers. Further, chewing tobacco is consumed by placing it between the bottom lip and the gum or under the tongue and it cannot be orally consumed in any other manner. This is not the case with Gutka. G. The Tribunal has referred to various....
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....he ban on Pan Masala and Gutka by the Food and Drug administration as unwarranted, illegal and bad in law. (viii) The Tribunal has also observed 'due to its often sweet taste, easy availability and cheapness, it is popular with poor children, school boys and girls who can exhibit precancerous lesions at a very early age as a result of its use'. Smokeless tobacco use is increasing rapidly in the stratum of society from which it had almost disappeared among individuals with college education who are in business and in middle and high level management positions. Pouches and sachets of smokeless tobacco are becoming more common in public places including schools and colleges as well as places of worship. It is visible even to the 'naked eyes'. The applicant submits that this is only an ipse dixit of the Tribunal without any substance, material or any evidence in support of the same and shows that Tribunal has totally misguided itself. Further, it has got nothing to do with deduction allowable under s. 80-I of the Act. (ix) 'After it is consumed, it is generally spat onto a wall or the ground or inside the bus/train and other public service including public toilets, causing an uns....
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....m of processed leaves will in all likelihood, immediately vomit it out. The applicant submits that it is true that tobacco has an unpleasant taste. But it is also a fact that despite the unpleasant taste tobacco or Zarda is widely consumed orally in the form of chewing tobacco. In any event, consumption of tobacco can neither be lethal nor intoxicating. 1. A person buys Gutka for the composite taste of betel nut, Kattha, perfumes, spices, Kesar and other ingredients together with tobacco. If the consumer is only interested in consuming tobacco he would prefer chewing tobacco or Zarda which is much cheaper than Gutka instead of going on for Gutka. Gutka gets its taste from spices and to some extent from tobacco, and favour, smell/odour from spices, Kesar and perfumes and colour from Kattha. Further, the base ingredient which is chewed in Gutka is betel nut. Hence, Gutka is not consumed only for the tobacco content but for the composite taste. Failure of the Tribunal to appreciate this fact discloses a mistake apparent from the record. J. The Tribunal's conclusion that there is divergence of view between Division Benches of the Tribunal at Allahabad and Pune on the issue, wheth....
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.... Aides Silk Exporters AIR 1999 SC 1609, without bringing them to the notice of the assessee. Learned senior counsel submitted that the assessee has always admitted that "Gutka" has tobacco contents to the extent of 6 to 7 per cent, but considering the extent of quantity of tobacco, the value of tobacco in the 'Gutka' preparation and the base of "Gutka", it could not be said that "Gutka" is a tobacco product. Learned senior counsel contended that there is no material or basis with the Tribunal to observe that the pharmacology of nicotine and the physiological and psychological effects of nicotine are intact in the tobacco added to the other ingredients in the "Gutka" and in Pan Masala containing tobacco in the same way and in the same strength as they are in the form of tobacco use. He contended that the mindset of the Tribunal that tobacco is harmful to the health, shall not decide the issue of admissibility of deduction under ss. 80-I and 80-IA to the assessee in a particular manner. He referred to the para 31 of the Tribunal wherein there is a reference to the debate in the Rajya Sabha regarding the trade in "Gutka", which he contended to be irrelevant. Learned senior counsel rel....
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.... a well reasoned, elaborate order deciding the issue of deduction under ss. 80-I and 80-IA in the case of the assessee. He relied on the decisions in Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) and in CIT & Anr. vs. ITAT & Anr. (1992) 102 CTR (Ori) 281 : (1992) 196 ITR 640 (Ori) in support of his arguments. Learned Departmental Representative submitted that the assessee has already preferred an appeal to the Hon'ble jurisdictional High Court and the Hon'ble High Court is seized of the matter and the remedy of the assessee lies in appeal before the Hon'ble High Court and not by way of filing miscellaneous application before the Tribunal. He submitted that subsequent Bench of the Tribunal Gould not go into the accuracy or otherwise of the decision of the earlier Bench of the Tribunal. 5. Learned counsel for the assessee in his rejoinder submitted that the Tribunal has committed factual errors in his appellate order, as pointed out by the assessee in its miscellaneous applications filed before the Tribunal, and they should be rectified under s. 254(2) of the Act. He submitted that merely because the a....
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....nt one in a preparation is relevant for judging whether a preparation falls under the expression 'tobacco preparations' or not. The dominant nature of an ingredient in a preparation must be judged in the light of the fact whether the properties of that ingredient are retained and dominate the preparation without undergoing any metamorphosis as a result of the addition of other ingredients in the preparation. Tested on this principle also, Gutka falls under the expression 'tobacco preparations' for the reasons explained earlier in this order." Accordingly it cannot be said that the tests have been invented by the Tribunal and were never put across to the assessee. Regarding the general observations of the Tribunal with regard to the harmful effect of tobacco on the health of citizens and the reference to the Rajya Sabha debate on the issue of "Gutka", we find that these observations are not the basis of the appellate order passed by the Tribunal in denying the deduction under ss. 80-I and 80-IA to the assessee and in holding that "Gutka" is a tobacco preparation. Accordingly, the decisions relied upon by the learned senior counsel for the assessee including that of Hon'ble Suprem....
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....hra Pradesh AIR 1994 SC 666, it has been held at p. 668 of the said report that 'the words 'such as' indicate that what are mentioned thereafter are only illustrative and not exhaustive'. At p. 670 of the said report, it is stated: 'So far as words 'such as' are concerned, there is no dispute that they are meant to be illustrative and not exhaustive'. At p. 671 of the said report, the terms 'viz.' and 'etc.' have been interpreted thus: 'The opinion of Viscount Finlay shows that the expression 'viz.' stands for 'videlicet', which means 'to wit' or 'that is to say'. These words are generally understood as words of limitation. Regarding the meaning of the word 'etc.', it was observed that the word 'etc.,' is absolutely different from 'et alia' and that it means 'all the rest'." Para No. 40: "......... In this view of the matter, the mere fact that Gutka or Pan Masala containing tobacco is specifically not included in the Eleventh Schedule inserted in 1977 w.e.f. 1st April, 1978 will not make any difference and thus will not advance the cause of the assessee. The view that we have taken in the matter is supported by the principle laid down in SIL Import USA vs. Exim Aides Silk Expor....
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....cord in the order of the Tribunal. Here in the case before us, the mere citing of the law as laid down by the Hon'ble Supreme Court in some cases, could not amount to mistake apparent from the record in the order of the Tribunal. No case has been made out by the assessee that the Hon'ble Supreme Court decisions have been wrongly applied to the case of the assessee, hence, some prejudice has been caused to either of the parties before the Tribunal. In these facts of the case, we hold that no mistake apparent from the record could be made out by the assessee in the order of the Tribunal on this issue. We consider it relevant to reproduce the decision of the Hon'ble Rajasthan High Court on this issue in the case of Raja Baldeodas Birla Santati Kosh vs. CIT (1986) 53 CTR (Raj) 391 : (1986) 158 ITR 601, 603 (Raj) as under: "The Tribunal could refer to a decision of the Supreme Court, which is the law of the land, if the same is relevant to the subject-matter of decision by the Tribunal, irrespective of the fact that the said decision was not referred to by learned counsel appearing for either party before the Tribunal. The order of the Tribunal, in which such decision of the Supre....
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....r stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality. A patent, manifest and self-evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record." 9. We find strength in the argument of the learned Departmental Representative that the subsequent Bench....