ORDER
P.K. Kapoor, Member (T)
1. These reference applications have been filed by the Department against Tribunal’s Final Order No. A/1102-1112/93-NRB. It has been urged that the following questions of law are arising out of the above order and the same may be referred to the Hon’ble High Court for decision :-
1. Whether the Tribunal was correct in law inasmuch as it refused to admit the letter of D.G.F.T. clarifying that Bezels fitted with glass required a specific licence even by actual users since the empty watch case is specifically mentioned in the restricted list of the Import Policy.
2. Whether after having refused to admit the additional evidence, if the clarificatory letter can be so regarded, the Tribunal could have sat on judgment and interpreted the Exim Policy.
2. Making his submissions on behalf of the Department, Shri M.M. Mathur, Jt. CDR stated that the question to be decided was whether Bezel fitted with glass could be deemed as “watch case” which was covered under Item 3A of the Negative List of the Import & Export Policy 1992-97. He stated that the Deputy Collector vide Order-in-Original No. 3/93 dated 22-1-1993 ordered the confiscation of the goods holding that bezels fitted with glass were “watch case” covered by Item 3A of the Negative List of the Import & Export Policy 1992-97 and had given an option for redemption of the goods on payment of fine of Rs. 80,000/- and had also imposed penalty of Rs. 16,000/- on the importers. He added that being aggrieved by the order passed by the Deputy Collector, the respondents had filed appeals before the Collector (Appeals) who set aside the order of the Deputy Collector and allowed the appeals filed by the respondents vide Order-in-Appeal Nos. 14 to 23-Cus/Raj/93 dated 29-4-1993 after accepting the respondents’ contention that bezels by itself was not a complete watch case and in this regard he had also taken into account the opinion given by the Joint Chief Controller of Import & Export, Jaipur and the D.C., SSI, New Delhi. He submitted that against the order passed by the Collector (Appeals) the Department filed an appeal before the Tribunal and also filed a Miscellaneous Application dated 15-10-1993 enclosing a clarification obtained from Director General of Foreign Trade vide his letter F. No. 48(428)/92-97/IPC dated September, 1993 that bezel fitted with glass is a ‘watch case’ even though without back. He submitted that the Tribunal decided the case on 31-12-1993 vide Order No. A/1102-1112/93-NRB without passing any order on the Miscellaneous Application No. C/Misc. Application 1067/93-NRB wherein request had been made for taking on record the letter F. No. 48(428)/92-97/ IPC dated September, 1993 of the D.G.F.T. and for being permitted to urge additional ground. He pleaded that the Ministry of Commerce being the final authority regarding Import Policy, their opinion is binding on the Customs in regard to the implementation of the provisions of the Policy. He stated that under these circumstances the letter from the D.G.F.T. should have been admitted as additional evidence by the Tribunal. He contended that in view of the decision of the Supreme Court in the case of jeeta Mai Ji Porwal Ji v. State of Gujarat – AIR 1987 SC 1321, the Tribunal should have admitted the said letter of the D.G.R.T. and also allowed the prayer for urging additional ground on the basis of the said letter as prayed for in the Misc. Application No. 1067/93-NRB. He further submitted that the Tribunal had erred in deciding the matter without admitting the Misc. Application and the clarification issued by the D.G.R.T. which was binding since the matters related to interpretation of Import Policy. He therefore contended that the points of law arising out of the Tribunal’s Final Order dated 31-12-1993, as listed in the Reference Applications, may be referred to the Hon’ble High Court for decision.
3. On behalf of the respondents, Shri N.C. Sogani, Consultant stated that there was no infirmity in the order passed by the Tribunal. He submitted that the Tribunal had given detailed reasons for the finding that bezel with glass could not be deemed as a ‘watch case’ since the watch case which comprise in addition to bezel with glass 5 other parts. He stated that in arriving at this finding the Bench had relied upon the relevant Indian Standard Specification 9783-1981 and also Britten’s Watch & Clock Maker’s Handbook Dictionary and Guide Sixteenth Edition. He added that the Learned SDR while making submission on behalf of the Department had stated that since the Bench had not allowed the Department to adduce additional evidence he was confining himself to what had been stated in the appeal. He, therefore, contended that it was not correct on the part of the Department to contend that the Bench had not taken into account the Miscellaneous Application filed by the Department. He submitted that in any case the Misc. Application No. 1067/93-NRB filed by the Department was for urging additional grounds and not for being permitted to file additional evidence as made out by the Learned Jt. CDR. He stated that the order passed by the Tribunal being reasoned and deals with all the points raised by the appellants therefore no question of law arises therefrom. He therefore pleaded for rejection of the applications for reference to the High Court.
4. I have considered the submissions made on behalf of both sides. On a perusal of the record of the case, I find that there is nothing to indicate that before passing the Final Order the Bench had taken any decision on the Misc. Application No. 1067/93-NRB filed on behalf of the Department. Since the said Misc. Application was filed by the Department, it was incumbent upon the Bench to pass an order on the application before taking up the appeals for final disposal. Under these circumstances, I hold that this is a matter where an error has been committed by the Tribunal in passing the Final Order A/1102-1112/93-NRB, dated 31-12-1993, before disposing of the Misc. Application filed by the Department. Therefore, an application for rectification of the error could only arise. The Department may therefore consider filing an application for rectification, if so advised. Only on disposal of the application for rectification, the parties to the appeal may exercise their right to prefer application for reference to the High Court.
5. In view of the foregoing, the applications for reference filed by the Department are rejected. However, it will be permissible for them to file an application for rectification, if so advised.
