2007 (6) TMI 105

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....of both sides, we note that, according to the appellants, there are five 'mistakes' in our final order. Firstly, the Board's Circular No. 24/2004-Cus. dated 18-3-2004 relied on by the appellants was not considered. Secondly, some of the grounds raised in the memorandum of appeal were not considered. Thirdly, the case law cited by the appellants on the question whether the Assistant Collector of Customs was empowered to review - his assessment order was not considered. Fourthly, the Bench failed to distinguish the facts of this case from those of Venus Enterprises v Commissioner of Customs, Chennai [2006 (199) E.L.T. 661 (Tri..-Chennai)], while dealing with the aforesaid question. Lastly, by preferring to follow Venus Enterprises (supra) rat....

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.... (ii) Assistant Collector cannot review his own order, (iii) No punishment to the importer for fault/lapse of department. As rightly submitted by learned SDR, we had considered all the points in Para 4.2 of the final order, under 'Issue no. 2'. Following the Apex Court's ruling in Union of India v. Jain Shudh Vanaspathi Ltd. [1996 (86) E.L.T. 460 (S.C.)] and the Tribunal's decision in Venus Enterprises (supra), we held that a demand notice under Section 28 of the Customs Act could be issued without a review of the order of assessment. We also noted that our earlier decision in Venus Enterprises (supra) had been upheld by the Hon'ble High Court of Madras. When we approved the proceedings taken under Section 28 of the Act, there was no questi....

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..... In the case of Commissioner of Customs, Kolkata v. Sunil Ghosh [2006 (199) E.L.T. 587 (Cal.)], the Hon'ble High Court held inter alia thus "a piece of evidence if alleged not to have been considered and a finding has been arrived at in that event it would not be a mistake rectifiable under Section 129B(2). This is a case of review since the entire finding has to be changed and the purpose would not be served by amending the order but by replacing the order or substituting the order as a whole. The effect of review is of setting aside the order and passing a fresh order upon considering the materials alleged to have been omitted to be considered. Review and rectification cannot be treated at par". Learned SDR has also claimed support from ....