TaxTMI 
TaxTMI 
2025 (6) TMI 2056
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....istakes apparent on record, which are as follows : (a) Non-consideration of the order passed by the Co-ordinate Bench of this Tribunal on the identical issue, namely, Commissioner of Customs (Port), Kolkata Vs. Twinkle Tradecom Private Limited reported in 2024 (5) TMI 472 (Tri-Kol.). (b) Further, this Tribunal has relied on the Office Order dated 12.03.2014 to say that there are five major components/assemblies, which are as follows : (i) Transmission ; (ii) Motors ; (iii) Axles ; (iv) Chassis and (v) Controller The said components provide essential characteristics to make a complete E-Rickshaw in CKD and SKD Condition classifiable under Customs Tariff Heading 8703, whereas as per Table in Paragraph 18 of the Order, it is mentioned that the connection box, controller and motor were imported along with other parts of E-Rickshaw, but this Tribunal over-ruled the facts that the appellant/applicant did not import transmission, axles or chassis along with motors during the disputed period. Therefore, there is a mistake apparent on the face of record. (c) It was also contended that this Tribunal relied on a Notifi....
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....und of appellant/applicant that clarification issued by International Centre for Automotive Technology ignored and reliance was placed on the website of private manufacturer of E-Rickshaw Spare Parts. It is his submission that the clarification issued by the International Centre for Automotive Technology is not binding on the Tribunal. Therefore, it is not a mistake apparent on the face of record. 3.4 In support of a reply filed by the ld.Authorised Representative for the Revenue, he relied on the following decisions : (i) Hon'ble Supreme Court Judgement in the case of Commissioner of Central Excise, Kolkata Vs. A.S.C.U. Ltd. : 2003 (151) ELT 481 (SC) ; (ii) Elpro International Ltd. Vs. Collector of Central Excise, Pune : 1996 (84) ELT 406 (S.C.) ; (iii) Collector of Customs, Allahabad Vs. Adhunik Detergents Ltd. : 1997 (94) ELT 321 (Del.-Tribunal). 4. The matter was heard extensively and both sides were asked to file written submissions, which have been filed by the both sides through e-mail and the same are taken on record. 5. The ld.Counsel for the appellant/applicant has filed the following submissions : "By order dated 05.06.2025 th....
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....ecord of the Order, more so, while the issue involved is squarely covered by the case law. 3. That in paragraph 18 of the Final Order, " In this context we note that as per Table 2 above, connection box, controller and motor were imported, along with other parts of E Rickshaw......therefore we are of the view that the three major components/assemblies in addition to the other components provides essential characteristics to make a complete E rickshaw in CKD/SKD condition, classifiable at 8703 have been imported". This is a mistake apparent on the face of the Order. In the beginning of the said paragraph the Hon'ble Tribunal, relying on the Office Order dated 12.03.2014, says that there are five major components/assemblies viz (i) transmission, (ii) motors (iii) axles (iv) chassis (v) controller that provides essential characteristics to make a complete E- Rickshaw in CKD SKD condition classifiable at 8703. 4. As per the Office Order, relied upon by the Tribunal in passing the final order, the importer must have imported two more essential components along with the motor to qualify the imported items under CTH 8703. However, the Appellant has imported only 'Control....
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....ported in one consignment (Bill of Entry) is established are sufficient to assemble E-Rickshaw in CKD/SKD condition. Moreover, we also note that the '' Sony India" judgment relied upon by the Appellant has been distinguished by subsequent judgments such as........'' When there are 18 Bills of Entries involved, the Tribunal mistakenly taken only one Bill of Entry, that too does not mention the number, date or other details of the same and without mentioning the items imported in that Bill of Entry, to confirm the allegation of the department. This is a clear mistake on the face of the record. The Hon'ble Court failed to enter into a discussion on those case laws by relating them to the issue involved in the cases. The Hon'ble Court did to accept the decision in Sony India for the reason that it was distinguished in few others cases, but failed to distinguish the same with the issue in this case and concluded without giving reasons, which amounts to grievous mistake. The issue in the case quoted by the Hon'ble Court are entirely on different subject matters involving admitted fraud, central excise case and fraud by dummy units. None of these cases has dealt with the issue "A....
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....er and discuss the contention of that Appellant that it is improper and contrary to law to issues SCN in a case where the bill entry was duly filed, and the imported items were cleared upon the passing of an order permitting clearance under Section 47 of Customs Act. In the absence of any appeal against the final assessment order, the said order attained finality, and initiation of proceeding thereafter is legally untenable. Without filing Appeal against the finality of the Order of Assessment, the present procedure is against the law. This amounts to mistake apparent on the record of the order, requires the rectification of the mistake. 12. That the Tribunal failed to consider the contention of the Appellant that the department failed to discharge burden of proof. This failure also amounts to a mistake apparent on the record of the order. 13. The decision placed by the Revenue in Elpro International Ltd. vs. Collector of Central Excise (1996 (84) E.L.T 406) is not applicable in this case, as it involves a case in which it was held that an order passed by a bench of three members cannot be heard and decided by a bench consisting of lesser number of members. On the....
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....stant ROM. 2. In the first place, the department would like to submit that the averment made at par 8 of the Rectification of Mistake Application (ROM) by the appellant, that liberty was given to submit additional submission and Order was forwarded on 04.11.2024 post hearing is factually incorrect and misleading on the following count: (a) The Hon'ble Bench has not given any liberty to give additional submission as per Daily Order sheet dated 23.10.2024. (b) The reference to para 5 (e) of the Hon'ble CESTAT Final Order dated 10.02.2025 by the appellant during hearing is regarding submission of records during proceedings. The court during hearing on 04.09.2024 has directed to submit certain records which was submitted by the appellant before final hearing i.e. 23.10.2024. The para 5(e) is reproduced as under: On 04-09-2024, the Learned counsel for the appellant prayed for and was granted three weeks time to place on record the remaining four Bills of Entry and also to prepare a chart showing the items that have been imported by the appellant against each Bill of Entry. The statement of list of such Bills of Entry submitted on 08-1....
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....also cannot be treated as "mistake apparent from the record". [1971 (2) S.C.C. 526 and 1997 (8) S.C.C. 502 followed]. [para 7] (ii) Rectification of mistake - More than one material relied upon by the Tribunal out of which some material may be irrelevant or which Could not have been used and without such irrelevant material Test reports not Tribunal may have given the same decision relevant to assessee's product relied by Tribunal besides other material including assessee's literature - HELD : No mistake apparent from record in Tribunal's order as it could be based on the other material which was relevant, however, if decision is based only on material which is irrelevant or which could not have been used then possibly there could be a mistake apparent from records - (iii) Tribunal's order recalling its order set aside - Section 35C(2) of Central Excise Act, 1944. - Undoubtedly if a decision is based solely on material which is irrelevant or which could'not have been used then possibly it could be said that there is a mistake apparent from the record. However, if a decision is based on mnore than one material, then merely because in the process of arriv....
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....d will unsettled the settled legal position as enunciated by Hon'ble Supreme Court regarding Rectification of Mistake and create avoidable litigations. Thus, the present ROM application is devoid of merit and needs to be set aside. It is prayed that the said ROM application may accordingly be dismissed." 7. We have gone through the records placed before us, the written submissions filed and case laws relied by the both the sides. 8. We find that as per the order passed by this Tribunal in this case, the hearing was completed on 23rd October, 2024 and after completion of hearing, on 04.09.2024, the ld.Counsel for the appellant/applicant prayed for time to submit additional evidences and was granted three weeks time to place on record the remaining four Bills of Entry and also to prepare a chart showing the items that have been imported by the appellant/applicant against each Bill of Entry. The statements of list of such Bills of Entry were submitted on 08.10.2024, is placed on record and taken into consideration. The compilation of case laws submitted by the appellant/applicant are also taken on record and considered. 9. After conclusion of hearing, the appellant/applic....
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....make 220 sets of e-rickshaws (without battery). Accordingly, the goods imported were considered as complete e-rickshaws in CKD condition and BOE was re-assessed by classifying the goods under CTH 8703 80 40. 4. On appeal before the Ld. Commissioner (Appeals), it was held that the goods as imported by the respondent are the 'spare parts of electric tricycle' and accordingly, classified the same under CTH 8708 99 00. Aggrieved by this Order, the Department filed an appeal before the Hon'ble Tribunal. 5. The Hon'ble Tribunal observed that the Respondent Assessee had declared the goods as "Spare Parts of E-rickshaw". It further noted that upon examination of the goods imported, the Department found that the imported goods consists of all the essential parts/components of the e-rickshaw. The essential items that were found to be imported by the Respondent Assessee are a. Motor b. Axle c. Chassis d. Tyre e. Transmission Based on the above imported items, the Hon'ble Tribunal observed that the Adjudicating Authority concluded that if all the parts are assembled together, it would make the complete ....
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.... Vide these BOEs, the Appellant has imported parts of the E- rickshaw viz. motor, controller, charger throttle, rear axle, shocker etc. It is submitted that the Appellant has never imported a. Transmission b. Front Axle c. Tyre d. Chassis And the above goods are procured locally by them. On application of the ratio laid down by the Hon'ble Tribunal, it can be clearly seen that the goods imported by the Appellant can in no way give essential character of an e-rickshaw. It is further submitted that the Appellant had imported 200 numbers of lead acid battery vide BOE No. 3237578 dated 15.05.2019 and 200 numbers of gear box vide BOE No. 4619777 dated 23.08.2019. However, the Department has nowhere produced any evidence or proof showing that the battery imported by the Appellant under this BOE was used for manufacture of E-rickshaw or were used as spare parts for further sale. It is submitted that ratio of the Order in Twinkle Tradecom (Supra) is squarely applicable in the present case as the Appellant had not even imported transmission, tyre, chassis and front axle. Therefore, the goods imported can in no way be classified under CTH 8703....
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....), wherein the Hon'ble Supreme Court has held as under: "13. "Rule of precedent" is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is a....
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....ention of Learned Representative of the Department that the application filed for rectification of the mistake apparent from the record in fact seeks a review of the Final Order or that it would amount to consideration of a debatable issue. The Learned Representative of the Department has, however, relied upon the decision of Supreme Court in Sant Lal Gupta and has submitted that a Coordinate Bench cannot comment upon the discretion exercised by another Co-ordinate Bench and the rule of precedence is binding to secure uniformity and certainty in law. This decision, in our opinion, supports the applicant. Once the decision of a Coordinate Bench had been placed before the Tribunal at the time of the hearing of the appeal, the Tribunal, to say, at least, should have considered the decision as it did decide the issue that was raised in the appeal." 18. In that circumstances, the argument advanced by the ld.Authorised Representative for the Revenue that the judgement of the Tribunal for non-consideration was not supposed to take cognizance, is not correct. In fact, the said decision is required to be considered while arriving at the final decision. Therefore, it is a mistake apparent....
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.... In that Circumstances, we hold that there is a mistake apparent on record. Therefore, the order passed by this Tribunal dated 10.02.2025 is required to re-consideration on the issues, like, non consideration of the decisions in the case of M/s Twinkle Tradecom Private Limited (supra) and M/s Advani Pleasure Cruise Co.Pvt.Ltd. (supra) mentioned by the ld. Counsel for the appellant/applicant. 24. Further, it is to be seen from the facts that whether the appellant/applicant has imported transmissions, axles or chassis along with the motors during the disputed period or not ? 25. Further, wrong mentioning of Notification No.55/2017 dated 30.06.2017 instead of Notification No.50/2017 dated 30.06.2017, is also required to be rectified. 26. In these terms, we allow the application for rectification of mistake in respect of the issues mentioned in Paras (23), (24) & (25) hereinabove. 27. The Registry is directed to place this matter for further hearing on 03.07.2025. (Pronounced in the open court on 19.06.2025) ============= Document 1 F. No. 01(17)/Reg./ROM-ROA Bench Const./CESTAT/2025 Customs, Excise and Service Tax Appellate Tribunal West Block No. 2, R.K. Puram, Ne....