ORDER
N.K. Bajpai, Member (T)
1. This application for Rectification of Mistake apparent from record in Order No. 110/91-A, dated 8-2-1991 has been filed under Section 129B(2) of the Customs Act, 1962 on the grounds that the Tribunal had not traversed the following arguments/pleas :-
“(a) Plea against loading of invoice in absence of evidence merely on the basis of surmises.
(b) Plea against enhancement of invoice value there being no whisper of allegation of illegal remittance of Foreign Exchange, over and above the L.C. value.
(c) Plea against not giving the same standard of credence to the foreign suppliers’ two certificates dated 17-3-1975 and 28-8-1981 by the learned Collector (Appeal) thereby prejudicing the appellants’ case.
(d) Plea that the appellants having no truck with the manufacturers, it was not possible for them to submit the manufacturers invoice.
(e) Mistakenly held that “39.5% share holding of the U.K. Company in the equity capital of appellants shows mutual interest in the business of each other.” Which was against the earlier decisions of the Tribunal.
(f) Hon’ble Tribunal presumed, conjectured and surmised “If such a relationship (mutual interest) does not exist there was no reason why U.K. Suppliers would not collect buying commission which they were collecting in the past,” and concluded that loading of 2.5% on invoice value was justified on the basis of said unwarranted presumption, conjecture and surmise travelling beyond the original authority’s admission that there was no evidence of payment of buying commission as admitted to records by the adjudicating Asstt. Collector.
2. As regards (a) and (b), it was submitted by Shri P.R. Dastidar, the learned Consultant for the applicants, that the Assistant Collector having admitted that there was no evidence of payment of buying commission (and further there being no allegation of illegal remittance of foreign exchange) it is settled by the Tribunal that without evidence it was not permissible to discard the invoice value and resort to Section 14(l)(b) of the Customs Act.
3. Arguing on the plea against not giving the same standard of credence to the foreign suppliers two certificates dated 17-3-1975 and 28-8-1981 by the learned Collector (Appeals), Shri Dastidar submitted that such an action had prejudiced the appellants case.
4. Referring to (d) above, Shri Dastidar submitted that since appellants had no dealings with the manufacturers, it was not possible for them to submit the manufacturers invoice.
5. Shri Dastidar cited the following decision on the question that the Tribunal was empowered to rectify a mistake in its order which was apparent on the face of that record :-
(1) Md. Irfan KJian v. Superintendent of Central Excise, Moradabad and Anr. – AIR 1960 Allahabad 402.
(2) National Textile Corporation Ltd. v. Collector of Customs, Bombay – 1987 (32) ELT 783.
(3) Indian Airlines v. Collector of Customs, New Delhi – 1989 (23) ECR 544 (CEGAT).
(4) Protiva Rani Samanta v. Collector of Central Excise, Calcutta -1984 (15) ELT 482.
(5) Popular Jewellers -1991 (52) ELT 399 (Tribunal).
(6) Laxmi Vijay Brass & Iron Works. -1991 (17) ETR 507.
6. On the merits of the order passed by the Tribunal on which the rectification application was moved, Shri Dastidar cited the following decisions :-
(1) Collector of Customs v. India Photographic Co. Ltd. -1990 (49) ELT 293.
(2) Satya Vijay Export Pvt. Ltd. v. Collector of Customs, Calcutta -1991 (51) ELT 457 (Tri.) = 1990 (30) ECC 74.
(3) Honesty Traders, Bombay v. Collector of Customs, Cochin. -1991 (55) ELT 102 (Tri.) = 1990 (16) ETR 67.
(4) Oudh Sugar Mills Ltd. v. Union of India -1978 (2) ELT J172.
(5) Collector of Customs, Bombay v. Modi Xerox Ltd. -1990 (48) ELT 141 (Tri.) = 1990 (30) ECR 226.
7. Shri Prabhat Kumar, the learned JDR referred to the scope of a rectification application and submitted that it has necessarily to relate to an error which should be apparent on the face of the record. He submitted that all the arguments made by the learned Consultant before the Tribunal during the hearing of the appeal have been considered and, in fact, after having recorded them in so many words in the order, the Tribunal had finally decided the matter. Therefore, there could not be any scope for rectification. What was being attempted in the rectification application was a review of the order of the Tribunal, and not rectification of the mistakes apparent on the face of the record. He relied on the judgment of the Supreme Court in the case of l.T.O. v. Volkart Brothers – AIR 1971 SC 2204 in which it was decided that 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 conceivably be two opinions. He also referred to another judgment of the Supreme Court in the case of Satyanarayan Laxminarayan Hegde v. M.B. Tirumale – AIR 1960 SC 137 in which it was decided as under :
Where, therefore, an alleged error is far 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.
8. We have carefully examined the records of the case and given our earnest consideration to the submissions of both sides. We have also studied the case law cited before us. While there can be no two opinions that the Tribunal is vested with the power to rectify any mistake apparent from the record in its order, such a power cannot extend to review of the order already passed. We, therefore, do not consider it necessary to go into the case law on the merits of the matter cited before us unless we come to the conclusion that any aspect of the matter taken as grounds of appeal or as arguments during the hearing have escaped our attention. For this purpose, we have once again carefully gone through the grounds of appeal and we observe that all the questions raised in the 12 grounds of appeal have been dealt with in the order of the Tribunal. As regards the various pleas taken in the present application, we observe that the plea against enhancement of invoice value without an allegation of remittance of Foreign Exchange is not valid for the purpose of determining the correct value of the goods. The value of the imported goods has to be determined in accordance with the provisions of Section 14 of the Customs Act, 1962 and this is what has been done in the order by taking into consideration all relevant aspects which were included in the grounds of appeal or were argued before us. The next plea is with regard to applying same standard of credence to the foreign suppliers’ certificates by Collector (Appeals). We observe that the Collector (Appeals) had discussed both the certificates in his order, and, while agreeing with him for reasons recorded in the order, we cannot now sit in judgment in an application for rectification of mistake on the merits or otherwise of the one or the other certificate. As regards the non-availability of manufacturers’ invoice, we observe that this matter has been dealt with by both the lower authorities and the appellants had reasonable opportunity of taking a plea against the findings recorded by them. The next plea that the Tribunal had mistakenly held that 39.5% share holding of the U.K. company in the equity capital of the appellants showed mutual interest in the business of each other, is obviously not a matter for rectification of mistakes. Similarly, the last plea about the absence of evidence of payment of buying commission is again a question on the merits of the decision of the Tribunal and is beyond the scope of an application for rectification.
9. Having thus considered all the pleas taken in the application for rectification of mistakes, we do not find any mistake apparent on the face of the record in the Tribunal’s order. The application for rectification of mistake is, therefore, rejected.