ORDER
Gowri Shankar, Member (T)
1. Having heard both sides on the four applications filed by the department for rectification of mistakes stated to be present in the common order passed by us on the four appeals by the assessee on 4-7-2002, we proceed to dictate our order.
2. The first mistake referred to in paragraph 6 in each of the applications (all being commonly worded) is that the Tribunal has not taken into account the contents of Clause (d) to the proviso under Sub-rule (2) of Rule 4 of the Customs Valuation Rules, 1988. The representative of the applicant points out that the Tribunal has specifically considered in paragraph 15 of its order, the submissions made by the departmental representative and refused to accept it on the ground that this is a new case now sought to be made and this clause was not at all in the notice issued to the party or in the Commissioner’s order. The departmental representative seeks to contend that the documents on the basis of which this clause will apply were specified in the panchnama which was drawn on 4-1-1999 for seizure of goods at one of the premises which was searched. That may be so. However, the applicant refers to the consideration of the provisions of law. Even if it is a fact that the seized documents which have supported the applicability of the provisions of law, that is no answer. It was on the department, if it so felt, to cite the provision of law, and it has not done so.
3. The second mistake alleged is that in the next paragraph, that Clause (b) of the proviso under Rule 4(2) was not considered. The arguments of the departmental representative, recorded in Paragraph 15 of the Tribunal’s order refers to both Clauses (b) and (c) of the proviso and whatever we had said in the preceding paragraph will apply to Clause (b) also.
4. The third mistake is stated to be contained in Paragraph 7. A general statement “that Tribunal has not looked into the evidences which existed prior to investigation, issuance of show cause notice and order-in-original.” The departmental representative explains that the evidence refers to here in this paragraph consists of a fax message dated 11-5-1998 from Jan Holland, AMF Bowling Inc to A.D. Singh of Galaxi Entertainment/Bowling Co. Ltd.; and dated 19-5-1998 of Deep Kalra, Managing Director of AMF (India) Pvt. Ltd. to Tuhin Parekh, a Director of Galaxi Bowling Pvt. Ltd. Further, it is not in dispute that these documents were not specifically cited or referred to in the notices that were issued as being relied upon by the department. The Commissioner in his order however refers to both these documents. We cannot do better in dealing with the ground of this appeal than reproducing the Interim Order No. CII/710-13/02, WZB of 21-2-2002 and communicated to both sides :
“1. At the commencement of the hearing yesterday Mr. A. Chopra, the departmental representative handed over to the bench a folder containing various documents. None of these documents is signed or attested by anyone and each is a photocopy. Apart from the document which are on record such as copies of statement, these papers include what appears to be a document making legal propositions; copies of invoices and a proforma invoice, copies of correspondence between various parties.
2. On examination, we find that many of these documents have not been enclosed in the paper book filed by the appellant. The department has not so far filed any cross objection or any other written submission. It appears that the arguments which were made yesterday by Mr. Chopra and today by Mr. Chopra and Mr. Pundir, Joint CDR revolve entirely around these documents. This in fact is what Mr. Pundir said. We are of the view that in these circumstances, it would be appropriate, before we consider these document for the department to file such application, as it may be advised to file, with regard to these documents as they appear to be in the nature of additional evidence. On this being informed to Mr. Pundir, he has sought time for taking appropriate action. He has been asked to send a copy of the application a few days in advance of the hearing to the appellant.
3. The matter is therefore adjourned to 20-3-2002.”
5. However, at no stage after this was communicated, was any application filed by the department seeking to introduce additional evidence for consideration in the Tribunal. In that situation, the action of the Tribunal in not taking into account the evidence which was relied upon in the notices issued or sought to be introduced in the records during the hearing before it does not amount to a mistake.
6. The further mistake alleged in ‘the last and final mistake, we are unable to comprehend exactly what mistake alleged in Paragraph 8 of the application consists of. This paragraph reproduces the Tribunal’s order at Paragraph 15 and goes to say that the Tribunal has treated the mistake as the notice clearly alleges that under Rule 5 and not under Rule 4 and repeats that the Commissioner has said that he does not accept the importer’s contention that the declared value was obtained after protracted negotiation and the Commissioner has applied Rule 10A. It is difficult to understand clearly what is the mistake that is alleged. The Tribunal has proceeded on the basis that the transaction value specified in Rule 4 was to be accepted as none of the contentions contained in the proviso under Clause (c) of that rule operative. This paragraph, appears to be an attempt to generally question the finding of the Tribunal for which an appropriate course is existing. The next paragraph of the application indicates filing an appeal to the Supreme Court.
7. The applications are dismissed accordingly.