ORDER
S.L. Peeran, Member (J)
1. This RoM application has been filed against the Final Order Nos. 1172 & 1173/2005, dated 19-7-2005 [2005 (190) E.L.T. 109 (Tri.)] passed by this Bench.
2. In the above-mentioned order, this Bench examined the question of payment of duty on the goods cleared by the appellants to Domestic Tariff Area. During the relevant period, the Notification 2/95 prescribed 50% effective rate of duty of the aggregate of Customs Duty leviable on the goods covered by subparagraphs (a) (b) (c) and (d) of Para 9.9 of the EXIM Policy 1997-2002. The appellants cleared the goods in terms of para 9.9(f) of the EXIM Policy and, therefore, it was held that the benefit of Notification 2/95 would not be applicable to the goods cleared by the appellants. Further, the Board’s Circular No. 42/97, dated 19-9-97 was examined and it was found that as per above Circular, the appellants would be entitled for the exemption. Since there was conflict between the notification and the Board’s Circular, it was held that the Notification and the Board’s Circular, it was held that the Notification would prevail. Holding the above view, this Bench upheld the OIA and dismissed the appeals of the appellants.
3. Shri G. Shiva Dass, the learned Advocate who appeared for the appellants, strenuously argued that the Bench has committed an error apparent on the face of the record by not appreciating the binding nature of the Circular issued by the Board. Reliance was placed on the Supreme Court’s decision in the case of Collector of C. Ex., Vadodara v. Dhiren Chemical Industries . It was further argued that no CVD was leviable under Notification 2/95 during the disputed period and this was not considered by the Tribunal.
4. The learned SDR urged that the Tribunal has appreciated the correct legal position in the matter and upheld the orders of the lower authority, therefore, there is no mistake apparent on the face of the record. Reliance was placed on the following decisions.
(i) Ahujasons Shawlwale (P) Ltd. v. CC, New Delhi Affirmed by Supreme Court as reported in 2004 (163) E.L.T. A54 (S.C.)
(ii) Dinakar Khindria v. CC, New Delhi
(iii) CM. Abdul Razak v. CC, Cochin
5. We have gone through the records of the case carefully. The Tribunal examined the relevant notification and held that during the relevant period, the benefit of the Notification cannot be given to goods cleared under para 9.9(f) of the EXIM Policy in spite of the Board’s Circular granting the same. The view of the Tribunal is that Notification has the force of law. It will have an over riding effect over the Board’s Circular. It cannot be said that this Bench has committed a mistake in holding such a view. Assuming that such a view is not tenable in the light of the Apex Court’s decision in Dhiren Chemicals case (cited supra), it is for the appellants to appeal against the order before the appropriate forum. The defect in the Final Order cannot be cured by filing a RoM petition. It has been held in the case law cited by the learned JDR that the RoM application is by no means an appeal in disguise whereby an order, even if it is not valid, is reheard and re-decided. In the Dinkar Khindria case, it has been held that only in a case where the mistake stares one in the face and there could reasonably be no two opinions entertained about it, a case for rectification of mistake could be made out.
6. In view of the above, we do not find any merit in the RoM applications and the same are rejected.