ORDER
I.J. Rao, Member (T)
1. We took up the Rectification Application and heard Shri H.O. Arora, Advocate for the appellants and Smt. Dolly Saxena, SDR for the respondent. According to the applicants the following mistakes were apparent on the face of the order No.A/12/88-NRB dated 2.1.1988 :
“(1) Confiscation of the 324 Cones of Polyester Yarn has been confirmed, without giving any option and fixing Redemption Fine U/S 125 of the Customs Act,1962, although specific ground to this effect was taken by the appellant,
(2) A finding has been recorded in para 16 page 17 of the order that:
“A perusal of the orders of the lower authority does not also suggest that a similar ground was taken before the Additional Collector. Hence we are of the view that the absence of technical scrutiny of the goods in question by itself would not disprove the case of the Department”.
It is borne out from the order of the Additional Collector, Reply to Show Cause Notice, statements of the witnesses and other records that specific request for testing the sample of yarn was made by the appellant and sample were drawn by the Department for testing. By mistake the Tribunal has missed to consider that basic facts, which has influenced the passing of final order and confirmation of the confiscation of 324 cones of polyester yarn seized by the Department.
(3) The Tribunal has also missed to consider record of Personal hearing including statement of Shri Raj Kapur, which has influenced the final order against the appellant.
(4) In para 8 (vi) page 3 of the order, it has been observed:-
“If the goods are of foreign origin, the Denier would be 75. The Invoices would disclose that the Deniers were different “.
During the course of arguments it has been contended on behalf of the appellant that if the yarn seized was tested the Denier would be different than 75, which would have established appellant’s contention. However, the-Tribunal by mistake has taken into account “Invoices” instead of “Test”, which error is also borne out from the records.
(5) For establishing their case, the appellant has relied on two Supreme Court’s judgments 83 ITR P. 26, Hindustan Steel Ltd., v. C.I. T. and 87 ITR P.349 -CIT v. Doulat Ram Rawat Mull, and has also filed copies of the said judgments, which seems to have been missed to be considered by mistake. By ignoring to consider the law laid down by Hon’ble Supreme Court, the Tribunal has committed an error which is apparent from the records. Non-consideration of the law laid down and relied on by the appellant has resulted in adverse conclusions.”
2. Shri Arora submitted that in respect of mistake No. 1 the law laid down that redemption fine should be fixed in respect of confiscated goods. This ground was not dealt with at all. The learned SDR, however, submitted in opposition that the absence of a finding should be taken to mean that the request has been rejected.
3. We note that under section 34 of the Central Excises & Salt Act it is mandatory that whenever confiscation is adjudged under the Act or Rules made thereunder the Adjudicating officer shall give the owner of the goods an option to pay fine in lieu of confiscation as the officer thinks fit. However, we further note that there is no proof that this point was pressed at the time of hearing. The summing up of the points raised by the learned Counsel for the appellants, as recorded in para 8 of the CEGAT order does not contain a reference to this argument. Therefore, we do not accept that this mistake is apparent on the face of the records.
4. With reference to alleged mistake No.2 we have verified the records and find that the submissions made by the applicants are correct. The CEGAT order recorded (page 7 para 16) that “the appellants though have laid emphasis on this point in the reply to the show cause notice, have never filed any application before the adjudication authority to send the samples for technical scrutiny. If the appellants were certain about their stand nothing prevented them from applying to the adjudicating authority to send the items for technical scurtiny. A perusal of the orders of the lower authority does not also suggest that a similar ground was taken before the Additional Collector. Hence, we are of the view that the absence of a technical scrutiny of the goods in question by itself would not disprove the case of the Department….” Shri Arora, the learned Advocate submitted that apart from asking for a test in their reply to the show cause notice, the Additional Collector himself summarising the reply to the show cause notice took note (page 10 of O-in-O) that ” it is also requested that a sample of the yarn may please be sent for testing”. We can’t overlook the fact that in para 8(v) of the CEGAT order wherein the points raised by the appellants through their Advocate were enumerated, the Bench recorded that the appellants wanted a test of the goods and that was not ordered.
5. We have considered the arguments of Smt. Saxena that while there could have been an omission in the order, such omission is immaterial as even otherwise the order is correct. According to her, denierage by itself does not establish Indian or foreign origin. She submitted that even ignoring this aspect, there was ample evidence against the appellants.
6. We are unable to agree with the learned SDR. From the language used in the order it is clear that the Bench placed quite a bit of importance on the alleged failure of the appellants to ask for a test of the goods. This is evident from the extracts we have reproduced earlier. Besides, Shri Arora argued that if the denierage is established the co-relation between the documents and the denierage could indicate the origin of the goods. Whether that is so or not has to be seen, but it remains that the Tribunal obviously committed a mistake in overlooking the factual position of the appellants asking for a test of the goods.
7. Therefore, there is a mistake on the fact of the order. This cannot be ignored.
8. The remaining points are of minor importance and need not be considered. The learned Advocate placed before us a judgment of the Hon’ble High Court of Madhya Pradesh in (1985) Taxation 76(3) – 168 {Commissioner of Income-tax, Bhopal v. Mithalal Ashok Kumar, M.T. Cloth Market, Indore) which dealt with a matter relating to rectification of mistakes. We have taken note of the same.
9. As there is a clear mistake in the order of the Tribunal, we feel that in the interests of justice the matter should be reheard. Attempts to decide the matter without reference to this mistake would not be just or even possible. In this view we recall the order No A/12/88-NRB (In Appeal No.l526/87-NRB dated 2.1.88) and direct that a fresh hearing be granted.
10. The rectification of mistake is accordingly allowed in these terms.
