TaxTMI 
TaxTMI 
2026 (7) TMI 1463
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....he reasonable belief that they represented smuggled gold and its sale proceeds. The Adjudicating Authority ordered absolute confiscation of the gold and currency and imposed penalty on Shri R. Uttam Patankar, and others under Section 112(a) of the Customs Act, 1962 (Act), which was upheld by the Commissioner (Appeals). Before the Tribunal, the appellants contended that Section 123 of the Act, was wrongly invoked without establishing foreign markings on the gold, that they had no role in or abetment of its import, and that the alleged accounting discrepancies were minor. They further submitted that the show cause notice did not allege any involvement in smuggling and that confiscation of gold of Indian origin was unsustainable. The Tribunal upheld the confiscation, relying on the Constitutional Bench judgment in The Collector of Customs, Madras Vs Nathella Sampathu Chetty [AIR 1962 SC 316] and that of the Hon'ble High Court of Madras in Mohammed Ali Jinnah [2025 (32) CENTAX 168 (Mad.)], holding that seizure by DRI on a reasonable belief of smuggling attracted the presumption under Section 123, shifting the burden to the persons from whose possession the gold was seized, which they f....
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.... that the Appellant seeks rectification of the Final Order under Section 129C of the Act, without prejudice to the right to appeal under Section 130 against the remaining erroneous findings. Submissions made by the Respondent-Revenue 3.2 Smt. O.M. Reena Ld. Authorized Representative appeared for the respondent. She stated that rectification means correcting an error or removing a defect. An error apparent on the face of the record is one that is evident on a mere perusal of the record and does not require a long-drawn process of reasoning. She submitted that since no such error is apparent, the M.A. may be rejected. Analysis 4. Heard both the parties and perused the M.A.. The Appellant has cited the following judgments in support of their submissions that the Tribunal has powers to rectify its mistake if apparent from the face of the record. Honda Siel Power Products Ltd. Vs Commissioner - [2008 (221) E.L.T. 11 (S.C.)]; Roots Multiclean Ltd. Vs CESTAT, Chennai [2016 (336) E.L.T. 25 (Mad.)]; Sree Daksha Property Developers Pvt. Ltd Vs C.C.E. Coimbatore [2016 (44) S.T.R. (Mad.)]; and Lachman Das Bhatia Hingwala (P.) Ltd Vs Asst. Commr. Og Income Tax [2016 (344) E.L.T. 875....
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....by the Tribunal and that when prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is duty of the Tribunal to set it right. It is settled law that, when the mistakes are on account of : - (a) palpable mistakes, (b) orders passed on inapplicable statutory provisions, (c) points raised in appeal, but not considered, and (d) wrong application of the judgment of the High Court, are mistakes that could be rectified by the Tribunal (as mistakes being apparent on the face of the record). The facts of these cases and the orders passed by the CESTAT would clearly go to show that the orders have been passed, without understanding the provisions of Section 35B of the Act." (emphasis added) 4.3 The Hon'ble Kerala High Court in The Commissioner of Income Tax Vs Younus Kunju (Kerala High Court) [ITA. No. 64 of 2015 / LAWS (KER)-2018-1-133, Dated: 11/12/2017], held: "25. Analogous to section 154 of the Act is the terse section 37 of the Rajasthan Sales Tax Act: "With a view to rectifying any mistake apparent from the record, any officer appointed or any authority constituted under the Act may rectify suo motu or otherwise....
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....ar from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ." 30. No error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it. But there might be cases in which it may not work because an error of law might be considered by one Judge as apparent, patent, and self- evident; but might not be so considered by another Judge. Therefore, we ought to conclude that the legal contours of an error apparent on the face of the record cannot be exactly identified. In other words, an element of indefiniteness is inherent in its very nature and must be left to be determined judicially on the facts of each case. [Hari Vishnu Kamath Vs Syed Ahmad Ishaque, (1955) 1 SCR 1104] (emphasis added) 4.4 In Supertech Limited Vs Emerald Court Owner Resident Welfare [2021 10 TMI 1325 - SC / 2021 SCC OnLine SC 3422] "8 In successive decisions, this Court has held that the filing of applicati....
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....e then Registrar of this Court in Sone Lal v. State of U.P. [(1982) 2 SCC 398] deprecating a similar practice.) 18. We, therefore, agree with the learned Solicitor General that the Court should not permit hearing of such an application for "clarification", "modification" or "recall" if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers." 9 The same view has been expressed in a subsequent decision in Ram Chandra Singh [Ram Chandra Singh vs Savitri Devi and Others (2004) 12 SCC 713 : [2004] 12 SCR 713] wherein another two-Judge Bench of this Court observed as follows: "15. In Gurdip Singh Uban [(2000) 7 SCC 296] the law has been laid down in the following terms: "17. ... This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of 'no hearing', we find that sometimes applications are filed for 'clarification', 'modification' or 'recall' etc. n....
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....ation' or 'modification' though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. The court should not permit hearing of such an application for 'clarification', 'modification' or 'recall' if the application is in substance a clever move for review." 10 More recently, another two-Judge Bench in Rashid Khan Pathan (Applicant) - In Re: Vijay Kurle (supra) held as follows: "9. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice." ***** ***** ***** 12 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather [See Meghmala v G Narasimha Redd....
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.... the process of arriving at the final decision, reliance was placed on some material which could not have been used then it could not be said that there was a mistake apparent on the face of the record in the final decision. vi) An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. vii) If records produced by the petitioner have not been taken into consideration and examined it is undoubtedly an error apparent on the face of the record. viii) Mistakes are on account of: - (a) palpable mistakes, (b) orders passed on inapplicable statutory provisions, (c) points raised in appeal, but not considered, and (d) wrong application of the judgment of the High Court, are mistakes that could be rectified by the Tribunal (as mistakes being apparent on the face of the record). ix) Non consideration of the judgment of a jurisdictional Court the ratio decidendi of which is relevant to the case and which is relied upon by the affected party, is an error apparent on the face of the record." (emphasis added) 5....
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....error' which can be reviewed and rectified by us. The reference to the assayer's certificate in the Final Order is based on the inclusion of the document being submitted in his written submissions while pleading the case at the bar, and our analysis thereon. 7.2 As regards overlooking judicial precedents, emanating from orders of this Tribunal and the Hon'ble High Court of Bombay and Delhi, it is to be stated that the judgment of the Hon'ble High Court was embedded at page 29 of the Coordinate Bench decision of this Tribunal in R. Mahaveer Pipada Vs Commissioner of Customs [Final Order Nos 40734-40735, dated: 31.08.2023]. The said order has cited many orders and judgments which would not have been possible for us to consider individually. Even otherwise the said judgment of the Bombay High Court at page 38 of the 'common synopsis', states that the absence of regular books of account cannot ispo facto lead to the conclusion that the seized gold bars are smuggled. The judgment does not lay out any principle relating to the maintenance of regular books of account and its evidentiary value or otherwise relating to smuggled gold. Similarly, the Tribunals order in R. Mahaveer Pipada a....
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....ndi." (emphasis added) 7.4 The Appellant has not identified, judgment-wise, the ratio decidendi of the decisions relied upon by him which are stated to be in conflict with the Final Order, nor has he pointed out any specific error, either of fact or of law on the face of the record, warranting interference without discussion or debate. The Appellant has referred to alleged errors, which are in the nature of judgmental errors and not an error on the face of the record that can be rectified by us. It is well settled that, by virtue of Article 141 of the Constitution of India, the law declared by the Hon'ble Supreme Court is binding on all courts and tribunals within the territory of India. The principle laid down by the Hon'ble Supreme Court in Nathella Sampathu Chetty upholding the constitutional validity of the reverse burden of proof, and the same principle applied by the jurisdictional Madras High Court in Mohammed Ali Jinnah, namely, that where unmarked crude gold is seized by Customs officers under a reasonable belief that it is smuggled, the burden of proof stands shifted in terms of Section 123 of the Customs Act, constitutes a binding declaration of law. Conseq....
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....e by the Appellant and summarised in the above para challenges the reasoning adopted in the Final Order and cannot be stated to be referring to a "mistake apparent from the record" that is obvious, self-evident, and open to view (ex facie) without requiring argument, debate, or a long-drawn process of reasoning. A judgmental error, if any, or an error in reasoning and legal application is an appealable error, not a reviewable error or an error apparent on the face of the record. Moreover, where a decision rests on multiple material grounds, reliance on one alleged inadmissible material does not by itself constitute a mistake apparent on the face of the record. A Larger Bench of this Tribunal in Commissioner of C.Ex., Raipur Vs BSBK Pvt Ltd [2011 (24) S.T.R. 49 (Tri. - LB)], while examining the terms 'mistake' and 'apparent' held as under; 8.9 "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is....