ORDER
D.C. Mandal, Member (T)
1. In this application under Section 129B(2) of the Customs Act, 1962, the applicants have prayed for rectification of this Tribunal’s Order No. 1019/86-B.2, dated 27-10-198S on the following grounds :
(i) The lower authority and the Tribunal have held that the imported goods were brass metal and not brass dross and the applicants misdeclared the description and value of the goods, which made the goods liable to confiscation under Section 111(m) and the applicants became liable to penalty under Section 112 of the Customs Act, 1962.
(ii) The lower authority has held that the imported goods were covered by Serial No. 442 of Appendix-4 Part-A of AM 85 l.T.C. Policy Book as non-ferrous alloy and required a valid import licence for their clearance. As the applicants could not produce an import licence, the import of the goods was unauthorised and the goods were liable to confiscation under Section 111(d) of the Customs Act read with Section 3(2) of the Imports & Exports(Control) Act, 1947 and “Section 3(2) of Import (Control) Order 1955”. The said serial No. 442 of Appendix-4 included non-ferrous alloys, ingots, castings and forgings, other than those elsewhere specified. The expression “non-ferrous alloys” refers to the nature of the goods and “ingots, castings and forging” refer to the form of such non-ferrous alloys covered by that entry. The entry does not cover brass in the form of lumps in crucible shape, as imported by the applicants. In none of the test reports the goods were found to be ingots, castings and forgings. The lower authority erred in holding that the imported goods were covered by serial No. 442 of Appendix-4. The Tribunal has not considered whether this finding of the lower authority was legal or proper. If the Tribunal had considered this point, it would have come to the conclusion that the goods were brass scrap and not brass ingots, castings and forgings. Brass scrap was under the OGL in the relevant Policy Book and by virtue of its being included in Appendix-6, List 8, Part III of the I.T.C. Policy Book, it could be imported by all persons for stock and sale. There was an error on the part of the Tribunal in not considering this fact which had led to the confirmation of the order of confiscation under Section 111(d) of the Customs Act.
(iii) The Tribunal has erred in ignoring the fact that the lower authority did not give any basis for taking the value of the goods at Rs. 33/-per Kg. The lower authority merely recorded a finding that on the basis of 69.1% copper, the value declared would be U.S. $ 0.60 per 1b. CIF Bombay based on the value of U.S. $ 0.45 per 1b CIF Bombay for 52 to 55% copper. In the sale of brass scrap in the international market it is not determined on the basis of the copper content. It depends upon the type of scrap, how clear it is, the demand and supply, etc. The burden of establishing the charge of under-valuation is on the Department. The Department has not disclosed any evidence to show that any amount other than the CIF value had been remitted for the goods.
(iv) The aforesaid discloses a mistake on the part of the Tribunal apparent on the face of the record. Hence the Tribunal may rectify the mistake and hold that there was no justification for confiscation of the goods under Section 111(d) of the Customs Act.
(v) “Clause (f)” of Section 111 is not applicable as that relates to” non-inclusion of any goods in the import manifest and the applicants had no say in the preparation and submission of the manifest. This clause is applicable to cases where excess goods are found or goods not included in the manifest are found on the vessel.
(vi) In the show cause notice and the order of the lower authority there is no allegation or finding that the applicants were in collusion with the supplier and imported scrap or other material in the guise of dross. The applicants made all the declarations in accordance with the shipment documents and hence there was no ground for confiscation of the goods under Section 111(m) of the Customs Act.
2. During the hearing of this application, Shri Srinivasan appearing for the applicants have re-iterated all the above grounds. Regarding the ground that serial No. 442 of Appendix-4 does not cover brass dross or brass scrap and brass dross falls under Appendix-6 of the I.T.C. Policy A.M. 85, he has stated that this point was raised in grounds No. (v), (vi), (xi) and (xiv) of the appeal memorandum submitted before this Tribunal. He has also argued that the C.T.A. classification was not decided by the Tribunal. He has relied on this Tribunal’s decision in the case of Tata Iron and Steel Co. Ltd. v. Collector of Customs, Calcutta, reported in 1985(21) ELT 513 (Tribunal) in support of the prayer for rectification of mistake. In the said case it was held that rectification could be made if the mistake was apparent from record and not from something which could be established by a long drawn process of reasoning.
3. Arguing for the respondent Shri Gopinath explained the scope of rectification of mistake and relied on this Tribunal’s decision in Metal Extruders (I) Pvt. Ltd., Bombay v. Collector of Central Excise, Bombay, reported in 1985 (19) ELT 198 (Tribunal). In this decision, it has been held that errors apparent from record, which does not require elaborate arguments, can be rectified under Section 35C(2) Of the Central Excises & Salt Act, 1944. Shri Gopinath has argued that even if an argument goes to the root of the case, this cannot be raised in an application for rectification of mistake if this argument was not taken at appeal stage. C.T.A. classification was not a ground in the Appeal Memorandum. C.T.A. classification is relevant for redemption fine and penalty as the duty evaded depends on classification. Maximum penalty under Section 112 of the Customs Act is five times the duty sought to be evaded. He has prayed that this application may be rejected.
4. We have considered the records of the case and the arguments of both sides. The Additional Collector of Customs has confiscated the goods under Section 111 (m), 111(f) and 111(d) of the Customs Act. He has held that the imported goods are brass, but the description of the same has been misdeclared by the applicants as brass dross. He has also held that the goods were under-valued to the extent of 15 cents per 1b. For misdeclaration of the description and value, the goods were liable to confiscation under Section 111(m) of the Customs Act. He has held the goods liable to confiscation under Section 111(d) of the Act on the ground that the same are covered by serial No. 442 of Appendix-4 Part A of A.M. 85 as non-ferrous alloys, the import of which required a valid import licence and since the applicants did not have a valid licence, the import of the gods was unauthorised, being in contravention of Section 3(2) of the Imports and Exports (Control) Act, 1947 and Clause 3(2) of the Imports (Control) Order, 1955. The Additional Collector held the goods liable to confiscation under Section 111(f) of the Act as the imported goods, viz. brass, were not mentioned in the import manifest. He also imposed a penalty of Rs. 1,00,000/- on the applicants under Section 112 of the Customs Act as they deliberately misdeclared the description and value of the goods.
5. The points in dispute in this case are whether the imported goods are brass or brass dross, whether there is mis-declaration of the description and value of the goods attracting the provisions of Section 111(m) of the Customs Act, whether the goods were, inter-alia, liable for confiscation under Section 111(d) and 111(f) of the Customs Act and whether applicants were liable to penalty under Section 112 of the Act. After careful consideration of the evidence on records this Tribunal, in its Order No. 1019/ 86-B2, dated 27-10-1986, held that the imported goods were brass and not brass dross. The Tribunal also held that there was mis-declaration of the description and value of the goods which rendered the imported goods liable to confiscation under Section 111 (m) of the Customs Act. As regards under-valuation, the Tribunal observed that the appellants in their letter dated 5-6-1985 stated that the foreign supplier had supplied brass instead of brass dross. As regards valuation, the Tribunal observed that the Revenue authorities had adopted the value at Rs. 33 per Kg. and that there was nothing on record which could lead the Tribunal in taking a different decision on the point of valuation. Nowhere in the Order No. 1019/86-B.2, dated 27-10-1986 this Tribunal has held that the imported goods were liable to confiscation under Section 111(d) and 111(f) of the Act in the absence of an import licence and for not mentioning “brass” in the import manifest. As regards classification, the appellants did not make it a ground in the appeal memorandum disputing the correctness of the CTA classification for the purpose of calculating the import duty on the imported goods. Therefore, the Tribunal was not required to give any findings on the question of CTA classification. The Tribunal did not accept the plea of the appellants that brass metal was supplied by the foreign supplier by mistake. There was no evidence on record to the effect that the supplier had sent brass metal instead of brass dross by mistake. It was also observed that there was a big difference in the price of brass metal and brass dross and that no prudent seller would sell expensive item at a lower rate. The Tribunal, therefore, was of the view that the applicants were liable to penalty under Section 112 of the Customs Act. However, to meet the ends of justice the Tribunal reduced the fine in lieu of confiscation from Rs. 5 lakhs to Rs. 4.5 lakhs in respect of each of the two bills of entry and also reduced the penalty from Rs. 1 lakh to Rs. 50.000/-.
6. The Tribunal’s Order dated 27-10-1986 was based on the proper appreciation of the facts and circumstances of the case and the evidence on record. There was no mistake in the Tribunal’s order apparent from the records of the case warranting rectification of the same. In the circumstances, the application filed before us has to be dismissed. We order accordingly.