ORDER
S.L. Peeran, Member (J)
1. This ROM application has been filed by the Revenue against the Final Order No. 2157 to 2158/96, dated 16-8-1996 passed by the Tribunal which dealt with classification of Chlorine tablets to be classified as a Sodium hypochlorite under Chapter Heading 2828 of the CET instead of the claim made by the Revenue under Heading 3808.90.
2. Against column No. 7 of the ROM application, the Collector submitted that the classification of the following products have not been considered :
(a) Baby care cold sterilizer (3808.90)
(b) Chloroscope (9031.00)
(c) Uribilirubin stix (3822.00)
The Revenue has also pointed out that there is an error apparent in the order with regard to the following two aspects which have not been dealt with by the Tribunal which were specifically raised in the Revenue appeal:
(a) Computation of value of clearances to decide duty exemption slabs under Notification No. 77/85-C.E., dated 17-3-1985 and 175/86-C.E., dated 1-3-1986 during relevant period and confirmation of duty demand.
(b) Confirmation of penalty imposed.
3. Detailed arguments were heard from both the sides and both sides have filed written submissions supported by case laws.
4. We have heard Shri Sankara Vadivelu, learned DR on the basis of the written submission stating that in the original proceedings, classification of five items had been raised in the show cause notice. The products are :
(a) Chlorine tablets
(b) Chlorine Liquid
(c) Baby Care cold sterilizer
(d) Chloroscope
(e) Uribilirubin stix
He pointed out that the Tribunal in the order proceeded on the ground that question before the Tribunal was only with regard to Chlorine tablets and decided its classification and no findings have been given with regard to the other items. He pointed out that the order-in-original passed by the Additional Collector had not dealt with the classification of the following products :
(a) Baby care sterilizer
(b) Uribilirubin stix
although, while computing duty in respect of Chlorine tablets and Chlorine liquid he had taken clearances of Baby care cold sterilizer. He pointed out that the show cause notice had not raised any demand on Chloroscope and Uribilirubin stix and therefore their classification is mainly an academic exercise. However, the Additional Collector ought to have given finding on Baby care sterilizer whose clearances have been taken into consideration while confirming the duty demand. He further pointed out that the Revenue had specifically challenged the confirmation of demand by the Additional Collector by limiting it to only Rs. 76,312 as against the total demand of Rs. 3,59,654.99. The Revenue had also challenged the imposition of penalty of Rs. 1000/- and sought for enhancement. The DR pointed out that the Tribunal has not given any finding on reduction of duty confirmed by the Additional Collector which had been challenged by the Revenue in Appeal No. E/1878/92. It was also pointed out that the final order in question mainly dealt with the appeal filed by the party in E/4619/92 which dealt with Chlorine tablets and Sodium hypochlorite with strong sodium hypochlorite solution and the final order of the Tribunal does not deal with the ground raised by the Revenue appeal and also pointed out the non application of mind by Additional Collector on various aspects pointed out in the Revenue appeal.
5. The learned Counsel for the assessee has filed reply raising other grounds for rejecting the ROM application and also relied upon judgments which dealt with general principles pertaining to rectification of mistake application which lays down the proposition that ROM application cannot be treated as a review petition and finding different than the one given cannot be obtained through the process of rectification application.
6. The various pleas in the written submissions filed by the respondents through their Counsel have been gone into and considered. On consideration of the submissions made, we notice that the show cause notice itself did not raise demand pertaining to items Chloroscope and Uribilirubin stix as could be seen from page 9 of the show cause notice. However, the aspect pertaining to their classification under Heading 9031.00 and 3822.00 has been raised in para 7 of the show cause notice. The Additional Collector has recorded about the dispute pertaining to five items and also the submission of the parties. However, he has not given finding on the classification of these two items. This portion of the order has been challenged as can be seen from the statement of facts and the grounds made in the appeal filed by the Revenue. We also notice that the Additional Collector has not given finding on the classification of Baby care cold sterilizer. However, while calculating the duty compution in his order has taken its clearance as can be seen from para 19 of the order, yet dispute pertaining to its correct classification was required to have been determined as the same is raised as a ground in the Revenue appeal. Further Additional Collector while giving duty computation and granting benefit of certain claims made by the party has reduced the demand from Rs. 3,59,564.99 to Rs. 76,312/- and imposed penalty of Rs. 1,000/- and the Revenue has challenged the various deductions given by the Additional Collector and the Revenue has sought for confirmation of duty demand of Rs. 3,74,548.60. In the final order of the Tribunal, the Tribunal has not given any finding on these aspects of the matter raised in the Revenue appeal but has merely dealt with the classification of Chlorine tablets without dealing with the aspect pertaining to computation of duty or the enhancement of penalty or on the aspect of correct classification of the products in question although there has been no demand raised pertaining to Chloroscope and Uribilirubin stix, yet their classification was required to have been determined. Classification of baby care cold sterilizer was also required to have been determined. The order of the Tribunal has not proceeded basically on the question of dispute which was in Appeal No. E/4619/92 in the assessee’s appeal. No finding has been given in the Revenue Appeal No. E/1878/92 either. Therefore, apparent mistake has arisen in the order passed by Shri V.P. Gulati, and Shri T.P. Nambiar, (Rtd. Members) Therefore, the Order No. 2157 to 2158/96 is required to be recalled and the appeals are required to be re-heard. Ordered accordingly.
5. The Registry shall list both the appeals and Cross Appeal No. E/427/93 for re-hearing by issue of notice to both parties.