ORDER
G.R. Sharma, Member (T)
1. Commissioner, Central Excise, Lucknow has filed the application stating that a mistake has crept in the Tribunal’s Final Order No. A/784-86/2000-NB(DB), dated 14-8-2000. The mistakes are reported to be that the Tribunal while passing the Final Impugned Order disposed of the appeals against the Order-in-Appeal No. 23 to 25C.E./LKO/2000, dated 27-3-2000; that while discussing the facts of the subject cases only case involving duty amounting to Rs. 2,95,860/- was taken into account and penalty had been reduced to Rs. 50,000/-; that the Hon’ble Tribunal has neither discussed the other remaining cases involving duty amounting to Rs. 12,20,951/- and Rs. 7,59,817/ and penalty of equal amount nor has passed any order in respect of penalty imposed in these orders.
2. Arguing the case for the Commissioner, Central Excise, Shri D.N. Choudhary, learned DR submits that a reading of paras 1, 2 and 3 shows clearly that the Tribunal had before it only that case in which the demand of duty of Rs. 2,95,860/- was considered. He refers to para 1, para 2 and para 3. Learned DR, therefore, submits that in para 7 the reduction of penalty to Rs. 50,000/- is to be read only in respect of the case where the demand of duty is Rs. 2,95,860/-. He submits that in the whole order there is no mention of other two demands and the penalty in those cases. Learned DR, therefore, submits that since the mistake is apparent on the face of the records, the other two appeals may also be considered in the impugned final order passed by the Tribunal and the matter may be re-heard, if necessary, or the penalty may be enhanced on pro rata basis. He, therefore, prays that Rectification of Mistake Application may be allowed.
3. Shri Kapil Vaish, learned Chartered Accountant appearing for the respondent(s) submits that after hearing both the sides and various arguments adduced by them the Tribunal passed an order by reducing penalty to Rs. 50,000/- under Rule 173Q. He submits that the applicant had filed the appeals in which reducing the quantum of penalty was prayed for and that
the matter was discussed in detail and the reduction of penalty was in respect of all the three appeals and not in respect of one appeal confirming the demand of duty of Rs. 2,95,860/-. Learned C.A., therefore, submits that in so far as the mention of other two appeals in paras 1, 2 and 3 is concerned he has no objection but in so far as the reduction of penalty to Rs. 50,000/- is concerned this must be treated as relevant to all the three appeals.
4. We have heard both the sides. On careful consideration of the submissions made we note that in terms of para 1 all the three appeals arising out of the Order-in-Appeal Nos. 23 to 25-C.E./LKO/2000, dated 27-3-2000 were considered. However in the first para only one Order-in-Original is mentioned and the remaining two Orders-in-Original which were disposed of by the Commissioner (Appeals) by one order were not mentioned. This is a mistake apparent on the face of the records. Para 1 of the impugned order is, therefore, modified to read as, “By the captioned appeals the Revenue had prayed for setting aside the Order-in-Appeal Nos. 23 to 25-C.E./LKO/2000, dated 27-3-2000 and in restoring the Order-in-original No. 117/99/Demand/ Modvat/29/99, dated 12-10-99, 60/99/Demand/Mod-vat/43/98, dated 27-3-99 and No. 118/99/Adjudication/23/99, dated 30-9-99”. Para 2 for the sentence “I, therefore, confirm the demand of Rs. 2,95,860/- being 8% of the value of LMFL cleared from November, 1998 to December, 1998″, shall be substituted by ” I, therefore, confirm the demand of Rs. 2,95,860/- for November, 1998 to December, 1998, Rs. 7,49,817/- for January to May, 1999 and Rs. 12,20,951/- for May to October, 1999 being 8% of the value of IMFL cleared from January to December, 1998″. Similarly, in para 3 for the existing sentences in the last sentence in para 2 of the impugned order, it may be substituted, “It was, therefore, alleged that the respondents cleared IMFL valued Rs. 36,98,259/- during November, 1998 to December, 1998; Rs. 2,10,51,315/- between April, 1998 to October, 1998; Rs. 93,72,717.55 between January, 1999 to May, 1999 and therefore, they were required to pay the amount equal to 8% price which comes to Rs. 2,95,860/-, Rs. 7,49,817/- and Rs. 12,20,951/- as duty under the provisions of Rule 57CC” may be read.
5. In so far as the pleas in regard to quantum of penalty is concerned we note that while writing the order in detail the Tribunal had in mind all the three appeals as is evident from para 1 of the impugned Order. Further, in para 7 the Tribunal has observed, “Appeals are, therefore, disposed of in the above terms.” This clearly shows that the Tribunal had in mind that it is not one appeal which is being disposed of.
6. Further, looking at the file and the Order Sheet of the day we note that when the case was heard on 14-8-2000 the following order was pronounced in the open Court; Duty shall be payable @ 8% on the entire quantity of rectified spirit. Penalty reduced to Rs. 50,0007- under Rule 173Q. Detailed order to follow”. All these things show that penalty of Rs. 50,000/- pertained to all the three appeals. At the time of dictating the order in chamber only figures of assessable valise, duty demand and penalty imposed were recorded in respect of one order but the reading of the order as a whole does not have any doubt in our mind that reduction of penalty to Rs. 50,000/- pertained not only in one case but to all the three cases. Moreover, the order was pronounced in the open Court before the representatives of both the sides.
Therefore, the chance of mistake in regard to quantum of penalty is minimal.
7. In view of the above discussions corrections in paras 1, 2 and 3 as above are allowed.
8. Penalty amount of Rs. 50,000/- shall stand as it is in terms of para 7 for all the three appeals.
9. Rectification of Mistake Application is disposed of in the above terms.