ORDER
M. Gouri Shankar Murthy, Member (J)
1. This is an application praying, inter alia, for :-
(i) a recall of the order dated 12-8-1986 disposing of the appeal, (ii) grant of a fresh hearing to the appellant, and
(iii) such further and other orders as may be deemed fit in the circumstances of the case.
2. The order dated 12-8-1986 sought to be recalled was our Order No. 604/1986-A by which we dismissed the Revision Application which was transferred to the Tribunal and heard as if it were an appeal. There is no question of recall of that order or grant a fresh hearing, once it had been pronounced or communicated. Recalling an order, once made, is nothing short of setting it aside. All that we could do is to amend the order with a view to rectify any mistake apparent from the record in terms of S.129-B(2) of the Customs Act, 1962 (hereinafter, the Act). An amendment of the order does not require the order to be recalled. If there is a mistake apparent from the record, the order is merely amended without being recalled or withdrawn or set aside. A power to “amend” an order once made, does not, ex facie, extend to a recall of the order for a review and reversal thereof. But more of this later.
3. Although the application does not purport to be one for amendment of the order as provided for in the aforesaid provision and no part thereof had been required to be amended with a view to rectify an error apparent, Shri Rangaswamy, the learned advocate appearing for the applicant argued it as if it was. Accordingly, we proceed to deal with it as if it were one made in terms of S.129-B(2) of the Act.
4. The facts in so far material are :-
(a) the applicant paid customs duty assessed under protest on 29-9-1977 in respect of an import of what was described to be “white coconut oil” in the Bill of Entry of the same date;
(b) in their letter of protest of the aforesaid date, the appellant would appear to have taken exception to a proposed assessment on the ground of valuation;
(c) a refund application was filed on 26th May, 1979 not merely on the ground of valuation but also on the ground that the imported goods being unrefined were not liable to C.V. duty;
(d) by an adjudication order dated 8th August, 1979, the refund claim in its entirety was rejected as being barred by limitation under S.27 of the Act;
(e) an appeal against the aforesaid adjudication order was allowed in so far as the claim for refund of C.V. duty was concerned;
(f) in so far as the claim for refund on account of valuation was concerned, the learned Appellate Collector had stated that it was not pressed before him and the appeal in relation to it was dismissed;
(g) although the appellant preferred an application on 24-1-1980 to the Appellate Collector praying for an amendment of the order or for a separate order in relation to the claim for refund on account of valuation, it does not seem to have been pursued. Instead, the Revision heard and decided by us was filed.
5. In our Order No. 604/86-A, aforesaid, we adverted to all these facts and held, for the reasons mentioned therein, that the Appellate Collector was correct in saying that the said claim was not pressed before him. In the course of our order we had stated in para l(e) “In the course of the order dated 11-12-1979, the learned Appellate Collector had specifically referred to the claim for refund on account of excess valuation and observed that it was not pressed before him.”
6. In the instant application, it was alleged, after a recapitulation of the aforesaid facts, inter alia, that :-
(a) the applicant had been urging the claim for refund on account of valuation all along;
(b) the Memo of Appeal before the Appellate Collector contained a ground in regard to it and on a perusal thereof, it would have become more clear to him that the ground was being urged and not given up;
(c) indeed, the counsel who appeared at the hearing of the Revision before us had understood that it would be allowed and the matter remanded to the Assistant Collector of Customs for a determination of the question of refund on account of valuation.
7. In the hearing of the instant application before us it was submitted by Shri Rangaswamy that :-
(a) the Appellate Collector in his order was dealing with two appeals. One was the appeal by the applicant. The other was an appeal preferred by M/s. Bombay Oil Industries. It was in the context of the appeal by M/s. Bombay Oil Industries that he observed that :
“while the Assistant Collector’s order seems to make some reference to a valuation dispute also, it is not pressed before me in these proceedings”. This observation was not in connection with the applicant’s appeal. A reference to the Assistant Collector’s order in the instant proceedings would disclose that it contains no reference at all to valuation. It was a summary rejection of the entire claim on the ground of bar of Limitation. The observation cannot, therefore, be understood to have been made in regard to the applicant’s claim;
(b) the Tribunal has been in error in para l(e) of their order wherein it was stated that the Appellate Collector had specifically referred to the claim for refund on account of valuation and observed that it was not pressed before him. The observation by the Collector was really in the context of the appeal by M/s. Bombay Oil Industries;
(c) this was an obvious and patent error which in exercise of its jurisdiction in terms of S.129-B(2) has to be rectified. [Decision in 1977 (109) ITR 574 (Additional Commissioner of I.T., A.P. v. P.R.N.S. & Co.) cited].
8. Shri Ajwani for the respondent cited the decisions reported in (1) AIR 1961 Cal. 195, (2) 1984 (14) ELT 310 [wrong citation – He was referring to our decision in the Entremonde Polycoaters case – reported in 1984 (18) ELT 310] and (3) 1986 (24) ELT 3(Mad.) and contended that there was no error apparent in our order that could be rectified in terms of S.129-5(2) of the Act.
9. On a consideration of the submissions made before us and a perusal of the papers, it would appear that :-
(a) neither in the Grounds of Revision nor in the arguments before us (when we heard it as if it were an appeal) nor even in the instant application was it mentioned or explained that the observation of the Appellate Collector, to the effect that the dispute regarding valuation was not pressed, was in relation to an appeal preferred by M/s. Bombay Oil Industries and not the present applicant. Such an explanation was offered for the first time impromptu in the course of the submissions before us;
(b) there is nothing in the order of the Appellate Collector to warrant such a surmise. Nor is the Assistant Collector’s order in the case of Bombay Oil Industries filed before us to establish demon-strably that the observation of the Appellate Collector was in relation to it, if, indeed, it was in that order that the Assistant Collector made a reference to a dispute on the question of valuation, although, for a fact, he made no such reference in his order in these proceedings;
(c) para l(e) of our order in the Appeal before us was a mere restatement of the observation of the Appellate Collector in the course of his order and we are satisfied that there is no error in it, much less an error apparent from the record, in terms of S.129-B(2) of the Act. An error, which is to be inferred from facts which are not on the record is not an error apparent from the record. If, on the contrary, the Appellate Collector was in error in making that observation, an application for rectification should have been preferred, if at all, before him. The letter dated 24-1-1980, far from controverting his observation, merely, stated that his order was silent on the question of valuation and requested for its amendment. His order was not silent on that issue. On the contrary, he observed that the question was not pressed before him;
(d) nor was his observation (as already held by us) challenged by an affidavit or otherwise in the Revision filed by the applicant, heard as if it were an appeal and dismissed by us;
(e) the decision in 1977 (109) ITR 574 (Additional Commissioner of I.T., A.P. v. P.R.N.S. &C.D.) relied upon for the applicant, hardly supports his case for rectification.’ Quite to the contrary. It was laid down therein following (1971) 82 ITR 50 (S.C.) – T.S. Balaram v. Volkart bros., – that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be, conceivably, two opinions. Nor is a decision on a debatable point of law a mistake apparent from the record. Much less can it be a mistake which, if at all, can be discovered or inferred from facts that are not on the record, like for example, the order of the Assistant Collector in the case of Bombay Oil Mills;
(f) in 1984 (18) ELT 310 [Entremonde Polycoaters v. Collector of Central Excise, Pune] we had occasion to deal with the scope and ambit of S.35(c)(2) of the Central Excises and Salt Act, 1944 -a provision ad idem with S.129(B)(2) of the Act – and distinguish it from a review and restitution ad integrum. To recapitulate in a brief compass – a rectification can be only of “a mistake apparent from the record” and cannot extend to a modification or alteration that may result from a review of the order made earlier. A review is a rehearing of a decided case where evidence not within the knowledge of applicant despite due diligence and having a material effect on the decision reached earlier, is discovered after the pronouncement of the judgement and a power of review has to be statutorily conferred either expressly or by necessary implication. Restitution in integrum differs both from review and rectification. It is an inherent power to undo, rectify and act in restitution, if by an erroneous act of the court, prejudice is caused to a litigant. Usually it is in the correction of the ministerial and non-appealable acts, as opposed to judicial acts’ (which can be corrected by appeal, revision or review), that such restitution is called for;
(g) while it may be that the claim for refund had been urged in the Memorandum of Appeal before the Appellate Collector, it is not inconceivable that it might not have been pressed in the hearing before him and when he says so, there is nothing contra to disbelieve him;
(h) various questions put during the course of the hearing to elucidate the correct position either on facts or in law cannot, justifiably, lead the counsel, in all conscience, to speculate or derive our final and inalterable conclusions on the issue debated, so that such impression as may have been left in the Counsel’s mind may be urged to assail our order which was, after all, not pronounced but reserved. If we had come to any categorical conclusion like e.g. remand in the course of the hearing, the order could have been pronounced then and there and not reserved. The impression in the mind of the Counsel is not conclusive on the ultimate order that may be, after due deliberation, passed eventually.
10. In the premises, the Application is misconceived and is dismissed.