ORDER
Krishna Kumar, Member (J)
1. Heard both sides.
2. The appellant/applicants have filed an application for Rectification of Mistakes against the CESTAT Order dated 22-11-2005 on the following grounds :-
A. The Hon’ble Member (J) in Para 8 of the said order has held that the redemption fine of Rs. 15.00 lacs does not appear to have been confirmed in the above paras whereas the Hon’ble Member (J) though agrees with Hon’ble Member (J) but has added that the Redemption fine becomes payable only when the goods are redeemed. Thus, there is a contradiction in the findings recorded by the Hon’ble Members (J) and (T) as Redemption fine is not payable as per the order of Member (j) whereas the question of payment of redemption fine would arise when the goods are redeemed as per Hon’ble Member (T)’s order and as the Dept. may say that since the goods are confiscated in the order of Commissioner the Redemption fine would be payable while redeeming the goods.
B. The Hon’ble Tribunal in Para 5 of the order has recorded in detail the arguments advanced by the Applicant’s counsel and in Para 6 by the counsel for the Revenue. The findings start from Para 7 and in Para 7 the extracts of the Hon’ble Apex Court’s order relating to the Applicant are given. In Para 8 the Hon’ble Member (]) records that after reading Para 32 it appears (emphasis) that the Hon’ble Apex Court has confirmed the penalty to the extent of the duty as mentioned in the above paras. There is absolutely no discussion or reference to the various arguments advanced during the hearing recorded, written submissions and the grounds taken. The applicant’s counsel in 7 pages of written submissions specifically pointed out that in the order of the Hon’ble Supreme Court dealing with B. V. Stars there is no confirmation to the Commissioner’s order regarding confiscation or imposition of penalty and though there is a reference in Para 32 but when one sees the entire order of the Hon’ble Supreme Court pertaining to the appeal of M/s. B.V. Stars there is no penalty imposed and merely because there is a reference to the quantum of penalty while dealing with the case of B.V. Jewels portion reference on penalty that would be only observation as while dealing with the case of the Applicants, there is no confirmation of penalty or fine. The applicants also had urged and referred to the Hon’ble Supreme Court judgment in the case of Mohd. Ali Khan and others that a construction which requires addition or substitution of words, has to be avoided and thus interpreting the Hon’ble Supreme Court’s order as levying penalty would mean addition of word fine and penalty in addition to the word ‘duty’, the applicant’s counsel also referred to the judgment of the Hon’ble Supreme Court in the case of Commissioner of Customs, Kandla v. Essar Oil Ltd. where Hon’ble Supreme Court had specifically confirmed the penalty levied.
C. This Hon’ble Tribunal in the case of Busa Overseas & Properties Ltd. v. Commissioner of Customs (I) Mumbai reported in 2002 (148) E.L.T. 328 (Tri.-Bom.) has held that certain important submissions which have a direct bearing on the issues under consideration have not been considered by the Tribunal and these are errors apparent from the records and therefore the Hon’ble Tribunal has recalled the order under consideration and considered the matter afresh on merits. This Hon’ble Tribunal in another judgment in the case of Raymond Ltd. v. CC & CE, Indore had recalled the order as submission regarding time-bar had not been considered. Therefore, following these two judgments since none of the submissions made and grounds urged have been considered by this Hon’ble Tribunal there is an error on the fact of records.
3. Simultaneously the applicants/appellants have also moved an application for staying recovery of the penalty of Rs. 2.57 crores pending disposal of the ROM application on the following grounds :-
1. The applicants herein have filed ROM application against this Tribunal’s Order No. A/477/WZB/05 C-IV (C.S.T.B), dated 22-11-05. The effect of the Hon’ble Tribunal’s order is confirmation of penalty of Rs. 2,57,90,900/- and the applicants have already received a letter dated 6-12-05 from the Supdt. (P), SEEPZ., SEZ directing the applicants to deposit penalty within 7 working days and if dues are not paid recovery shall be done from the sale of attached diamonds.
2. The applicants submit that diamonds worth Rs. 4.37 crores are already attached by the Dept. and original property papers valued at Rs. 5.00 crores are already in the custody of the Respondent and therefore interests of Revenue are more than fully secured.
3. This Hon’ble Tribunal in the case of Choice Apparel v. Commissioner of Customs, Bangalore reported in 2005 (180) E.L.T. 252 (Tri.-Bang.) has held that this Hon’ble Tribunal can give a direction to the Revenue not to take coercive steps till the ROM is disposed of.
4. The Id. Consultant appearing on behalf of the Revenue has reiterated the said order passed by the Tribunal and inter alia submitted that the same is correct and needs no interference.
5. After hearing both sides and perusal of the records, we direct the parties to maintain ‘status quo’ in the matter. Thus, the stay petition stands disposed off accordingly. As regards the ROM application, the same is fixed for final hearing on 12-5-2006. Notice may be issued.
(Pronounced in Court)