JUDGMENT
1. In this Writ Petition, petitioner wants the issue of a writ of certiorarified mandamus calling for the records of first respondent in Order No. 83 of 1996, dated 12-6-1996 and quash the same and for further directing the first respondent to modify its Order No. 862 of 1995, dated 24-11-1995 as prayed for in the petitioner’s rectification Application No. E/ROM/256/96 MAS in E/563/91.
2. In the affidavit filed in support of the writ petition, it is alleged that the petitioner is engaged in the manufacture of cigarettes and has its factory at Salem. The goods are cleared from the factory of the petitioner on payment of excise duty. Until 1989, petitioner’s factory was under the physical control of the Excise Department and the goods were cleared from the factory after verification of the gate passes and other documents by the Central Excise Officer who is in charge of the petitioner’s factory. While so, on 24-6-1989, 28-6-1989 and 15-7-1989, Excise Officers visited the petitioner’s factory and seized various documents and records from the petitioner’s factory. A show cause notice followed, asking the petitioner to explain why a total duty of Rs. 1,23,45,897.65 P. should not be demanded from the petitioner and also as to why penalty should not be imposed. A detailed reply was given along with various annexures. Second respondent who decided the adjudication, confirmed the show cause and also imposed penalty. The matter was taken before the first respondent an Appeal. Various grounds were taken for setting aside the order passed by the second respondent. Several paper books containing copies of documents are also filed. The questions that arose in Appeal were (1) whether there was clandestine manufacture and removal of cigarettes without payment of duty during 1-3-1989, 23-6-1989, involving a duty of nearly Rs. 51 lakhs, and (2) whether there was removal of cigarettes without payment of duty under delivery challans to Messers, Suvarna Filters and Tobacco Products, involving a duty of nearly Rs. 72 lakhs. It is said that arguments were heard on various dates, and finally an order was passed on 24-11-1995. The Appeal was partly allowed. The first respondent found that there was no clandestine removal of cigarettes. But it was found that without payment of duty, there was double transportation, and to that extent, the finding of the second respondent was confirmed.
3. After receipt of the order of the first respondent, an application was filed by the petitioner on 18-3-1996 under Section 35C(2) of the Central Excises and Salt Act, 1944. In the rectification petition, petitioner alleged that there was no application of mind, and there was lack of evidence for drawing an adverse inference. It was also alleged in the rectification petition that the important point argued was regarding first visit by the Officers in connection with the case on 24-6-1989. On that occasion, delivery challans and invoices were neither noticed nor seized at that time, and this was done only during the second visit. It is said that except for the delivery challans and invoices, there is no material to corroborate the transportation. Failure on the part of the Excise Department to make enquiries from Suvarna Filter or from Golden Tobacco as to whether both had made payments and both had received the consignment of cigarettes was fatal to the Department’s case. According to the petitioner, these constitute an ‘error apparent on the face of the record’ of first respondent, which enables them to have the order rectified.
4. By the impugned order, first respondent dismissed the same on the ground that there is no error apparent on the face of the records. Even if such a contention is accepted, first respondent found that that is not a ground for rectification. At the most, it will amount to a non-consideration of a mixed question of law and fact, which does not give jurisdiction for rectification. There is no error apparent on the face of the records, and the remedy of the petitioner is only to file a Reference Application, stating that the findings arrived at are not in consonance with the records, and relevant evidence has not been taken into consideration. The Tribunal further said :
“…. Just because of the fact that the Tribunal interpreted, the evidence on record in a particular way and not the way in which the appellant wanted to interpret the same does not constitute an error apparent on the record. In this view of the matter, we find no force in the contentions of the appellant and this application is therefore rejected.”
This, according to the petitioner, enables him to invoke Article 226 of the Constitution of India, and he wants this Court to compel the first respondent to rectify the order in appeal.
5. The learned Additional Central Government Standing Counsel was also heard in the matter.
6. Having considered the rival claims, I do not think the petitioner is entitled to any relief from this Court under Article 226 of the Constitution of India. In the impugned order of the first respondent, paragraph 15 deals with the question whether there was double transport of the goods and whether duty was paid. In paragraph 15, first respondent has said thus:
“…. One set of cigarettes being transported under GP 1s to M/s. G.T.C. Ltd. and another set of cigarettes being transported under the cover of delivery challans to M/s. Savarna Filters and Tobacco Products. .. ..”
Thereafter, first respondent took into consideration the submission made on behalf of the petitioner about the trade practice. After rejecting the contention of the petitioner, first respondent again said thus :
“…. On examination of the letter written by M/s. Suvarna Filters and Tobacco Products, we find that they had nowhere indicated that the delivery challans should be made in their name and the goods should be transported under the cover of GP 1s to M/s. G.T.C. Ltd. In the normal course of business, delivery challans are issued to cover the transport of goods. We also observe that the delivery challans clearly indicate that the goods had been transported from the factory to the consignee. The contention of the appellant that the word ‘ex-works’ printed in the challan only mean that the price was at the factory gate and not FOR. This explanation is not convincing in view of the fact that no price was indicated in the delivery challans. The appellants also contended that there are no signatures at the place where the receiver of the goods is required to sign, and therefore, the goods were never received by M/s. Suvarna Filters and Tobacco Products …..”
For the above contentions, the Tribunal said thus :-
“… it may be a device to hoodwink the Central Excise authorities. THE DELIVERY CHALLANS, AS WE HAVE POINTED OUT, COVER TRANSPORT OF GOODS. ON THESE DELIVERY CHALLANS, WE ALSO OBSERVE THAT A GATE PASS NUMBER HAS BEEN INDICATED. BUT THIS GATE PASS WAS ISSUED TO M/s. G.T.C. LTD. AND, THEREFORE, WE HOLD THAT CIGARETTES WERE TRANSPORTED UNDER THE COVER OF THE CHALLANS AND THESE CIGARETTES DID NOT PAY AND DUTY . … … ….”
After holding thus, first respondent gave three reasons. They read thus :
“The first reason is, that there was abnormal shortage of tobacco for the period, but subsequent to the issue of the challans. But the fact remains that abnormal wastages were being claimed not only in respect of tobacco but also in respect of shells and slides. The second reason is that the shells and slides which are important packing materials were either non-accounted for or wastages of very high order were being claimed on the shells and slides. The third reason is that the delivery challans normally cover actual transportation of goods. HAVING REGARD TO THE ABOVE DISCUSSION, WE HOLD THAT DUTY SHALL BE PAYABLE ON THE CIGARETTES WHICH WERE TRANSPORTED UNDER THESE DELIVERY CHALLANS . .. …..”
7. Learned Counsel for writ petitioner was indeed at pains to satisfy the Court how far in the reasoning of the first respondent, there is error apparent on the records. The argument of learned Counsel was that, without examining the consignee, namely, Messrs. G.T.C. as well as Suvarna Filters and Tobacco Products, there cannot be a finding that there was double transport. It is true that verification from these companies also would have added to the evidence and it could have supported the case of the petitioner. But that cannot be a reason to hold that there is error apparent on the face of the record. When the first respondent has not taken any statement from the two companies, it cannot be said that there is a non-consideration of material evidence, since it is not evidence on record. First respondent has conclusively held that on the available materials, and that too for three reasons referred to therein, there was double transport and duty was not paid.
8. In the decision (T.S. Balaram v. Volkart Brothers, Bombay), their Lordships considered Section 154 of the Income-Tax Act which deals with rectification of assessment. In that case, their Lordships said thus :
“The power of the Officers mentioned in Section 154 of the Income-tax Act, 1961 to correct “any mistake apparent from the record” is undoubtedly not mere than that of the High Court to entertain a Writ Petition on the basis of an “error apparent on the face of the record.”
A mistake apparent from 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 be two opinions.”
9. In 1980 Tax L.R. 474 (M/s. Jainarain Jeevraj v. I.T. Commissioner Jaipur), a Division Bench of the Rajasthan High Court (in paragraph 7 of the judgment) held thus :
“… It appears that the assessee only wants to re-argue the case and take a further chance. This is not within the scope of an application for rectification.”
10. In the decision reported in 1990 (2) KLT 585 (Rajamoni Amma v. Dy. Commissioner) it was also a case under Section 154(1) of the Income-tax Act, 1961. The Kerala High Court held thus :
“To say that a mistake is apparent from the record, the same must therefore 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 conceivably be two opinions. Thus a decision on a debatable point of law cannot be said to be a mistake apparent from the record. THE MISTAKE MUST BE SOMETHING WHICH APPEARS TO BE SO EX-FACIE AND IS INCAPABLE OF ARGUMENT OR DEBATE. IT THEREFORE FOLLOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS WHICH RETAIN TO BE INVESTIGATED CANNOT-BE CORRECTED BY WAY OF RECTIFICATION. From the plain and unambiguous language employed in the section it is clear that the record contemplated thereunder only means the record of the particular proceeding dealt with by a particular income-tax authority. For instance if the Commissioner in exercise of his revisional jurisdiction considers the validity of an order of assessment, then undoubtedly he has the power to look into the entire record pertaining to the assessment while dealing with a petition for rectification of an order revising the order of assessment under Section 154.”
11. I have already said that the entire argument of learned Counsel for the petitioner was on the presumption that there will be some evidence if verification had been done with the aforesaid two companies. So, it cannot be said that on the basis of the available records, (it has to be held that but for the evidence which he expects that it will be in his favour), the Tribunal has not considered material evidence on record available before it. Learned Counsel relied on the decision reported in 1965 ITR 634 (Income Tax Officer, A-ward, Dehra Dun and Another v. Income-Tax Appellate Tribunal, A Bench, Delhi). On going by the facts of that case, I find that the judgment of the Tribunal was vitiated since it did not consider a material fact at the time of allowing the order or judgment, and which fact was duly brought to its notice by the assessee. That means, evidence was available before it, but the same was omitted to be considered. Another decision cited by learned Counsel is reported in 1986 ITR 755 (Commissioner of Income-Tax v. Mithalal Ashok Kumar). In that case, the Tribunal itself admitted that it did committed certain mistake in not considering the material which is already on record, which had the effect of deciding the appeal on merits. When the Tribunal itself admitted that it has not considered an important point, but the same was challenged before the High Court by the Department, and the Madhya Pradesh High Court rejected the claim. I do not think, the said decision also in any way helps the petitioner. The Tribunal itself has held that it has considered all the points and specific reasons have already been given, and it has not omitted to consider any evidence that was placed before it.
12. I do not think that the petitioner has made out any ground to invoke Article 226 of the Constitution of India. The Writ Petition is, therefore, dismissed. No costs. W.M.P. Nos. 19589, 15590 of 1997 and 19974 of 1996 are also dismissed consequently.