ORDER
Jyoti Balasundaram
1. According to the applicants herein who are represented by their Counsel, Shri N.C. Jain, the error in the Tribunal’s Final Order No.725-727/99-D dated 13.8.99 arises in not considering the plea that the goods in dispute(SIC) synthetic monofilament captively consumed in the manufacture of nylon tufts are not marketable as textile material. Learned Counsel submits that he had relied upon the decision of the Apex Court in the case of Bhor Industries reported in 1989 (40) ELT 320 (SC) and Moti Laminates reported in 1995 (76) ELT 241 (SC) to support his argument that the criteria of marketability is required to be satisfied before the goods can be held to be liable to duty. On the other hand, learned SDR, Shri Ashok Mehta, contends that the Tribunal had considered the aspect of classification in para 5 of the order, such as HSN Explanatory notes to Chapter 54 and the definition of textile materials in Fair Child’s Dictionary of Textiles and, therefore, no error arises. He cites the Larger Bench decision in the case of Dinkar Khindria vs. CC, New Delhi reported in 2000 (38) RLT 442 in support of his plea that a decision on a debatable point of law or fact is not a mistake apparent from the record and he submits that the applicants herein are actually seeking review of the Final Order in the guise of a ROM application, which is not permissible in law.
2. We have carefully considered the rival submissions. We find that it was contended before us during the hearing of the appeal that the product in dispute being articles of plastics for the purpose of classification under TI 15A(2) under the old Tariff, they continue to be articles of plastics and cannot be treated as textile material for the purpose of classification under Section 54 of the Schedule to the CETA 1985. In other words, it was the assessee’s contention that the good fall for classification under Chapter 39 subsequent to 1.3.86 and not under Chapter 54. It was never contended that the goods in dispute are not marketable and hence not excisable. Since the plea of non-marketability was never raised in the appeal and since the issue of marketability was considered in Tribunal’s Final Order No.611/97-D dated 25.7.97 on which the goods were held to be marketable and classifiable under TI 15A(2) of the Schedule to the erstwhile Central Excise Tariff, no error arises in not considering such plea. We agree with the learned DR that the applicants are seeking review of the Final Order which is not legally permissible. For these reason, we reject the application.