AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 2056
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....lows : (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 Notification at Sl.No.526A of Notification No.55/2017 dated 30.06.2017, which is a non-existent ....
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....logy 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 the Hon'ble Tribunal has directed to submit the written submissions post hearing of the application for rectification of mistakes in t....
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....e 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 'Controller' out of the five essential components along with motor. 5. That the Hon'ble Tribunal did not consider that in terms of the Office Order dated 12.03.2014, if any two of....
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....y 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 "As present in Rule 2(a)". 7. It is submitted that ignoring the judgment of the coordinate benches which was placed before the Hon'ble Tribunal on the same issue amounts to mistake apparent f....
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....ng 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 other hand, in the case cited by the Revenue it was held that "Rule 31 A CESTAT Procedure Rules provides-"an application for rectification of mistake apparent on the record, under subsection 2 of section 129 of customs act or subsect....
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....d 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 08-10-2024 is placed on record and taken into consideration. Furthermore, without prejudice to the above, this ground has no relevance in the admissibility of ROM application. 3. The Hon'ble Delhi Tribunal Order has relied on Delhi High Court Judgment - Rama Krishna Sales Pvt.....
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....eports 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 arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used. [paras 13, 14] (iv) Recti....
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.... 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/applicant sent written submissions through e-mail on 04.11.2024, which are as under : On behalf of the Appellant WRITTEN SUBMISSIONS BY THE APPEALLANT POST ARGUMENTS HELD ON 23.10.2024 BEFORE THE HON'BLE TRIBUNAL Appeal Number C / 51965 / 2022 Appellant M/s Y. C. Electric Vehicle Disputed demand Rs. 14,82,28,083/- under Section 28(1), along with interest under Section 28AA....
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....partment 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 e-rickshaw (without battery) and relied on Rule 2(a) of the General Rules of Interpretation. In para 6.1 of the Order, the Hon'ble held that the interpretation of the GIR by the adjudicating authority is not proper. It further held that as per the reading of descriptions as provided under Import Tariff, Section Notes to Chapter XVII and Explanatory Notes to HSN / CTH 8703 and 8708, the goods imported will have the essential characteristic of e-rickshaw only when the same are assembled to create a T-shaped....
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....ers 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 and the Appellant's classification under CTH 8708 ought to be upheld. 10. On going through the said written submission, we find that the appellant relied on the decision of this Tribunal in the case of Twinkle Tradecom Pvt. Ltd. (supra), which, as per the appellant/applicant, is very much relevant to decide the issue in hand and the copy of the order relied, was not considered while drafting the order. Therefore, we hold that this is a mistake apparent on the face of record as the said decision filed by the appellant/applicant is not considered by this Tribunal. 11. We fur....
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....der 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 attributable to the Tribunal's mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case. Conclusion : 14. For the aforestated reasons, the impugned judgment of the High Court is set aside and the order passed by the Tribunal allowing the rectification application filed by the assessee is restored. Consequently, the appeal is allowed with no order as to costs." 14. Further, in the case of Assistant Commissioner of Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Limited report....
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....nate 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 on the face of record. 19. The appellant/applicant has also raised a issue that the decision in the case of Advni Pleasure Cruise Co.Pvt.Ltd. Vs. Commissioner of Customs, Nava Sheva Raigad reported in 2020 (371) ELT 408, has not been considered to arrive at the final decision in this case, which was very much essential for consideration. Therefore, we hold that the decision in the case of Advni Pleasure (supra) was required to be given consideration, which this Tribunal has failed to do so. Therefore, it is a mistake apparent on the face of record. 20. Further, we find that the appellant/applicant has drawn our attention to the Par....