JUDGMENT
Archana Wadhwa
1. The present application has been filed by the applicants under the provision of Section 35C(2) of the Central Excise Act, 1944 for rectification of mistake in respect of order No. A-1779-1781-Cal/2000 dt. 31.10.2000 passed by the Tribunal, vide which the order-in-original dt. 2.3.98 passed by the Commissioner has been upheld.
2. We have heard Shri V. Sreedharan, ld. adv. appearing for the applicant and Shri V.K. Chaturvedi, ld. SDR for the Revenue.
3. For deciding whether there has been a mistake in the said order of the Tribunal, certain factual positions are required to be adverted to.
3.1. The applicants are engaged in the manufactured of motor vehicle chessis and parts thereof. They filed a price list along with the annexure showing the standard fitment of the chessis. However, whenever there is a change in the standard fitment and the same are replaced with other fitments, the appellants charged additional amount from their customers. The dispute in the present appeal related to chessis of model 1612. According to the appellants the standard fitments of the said model was engine 697 and gear box 40. However, by mistake the said standard fitment could not be shown in chessis 1612 and the price list filed by them wrongly showed that engine no. 692 and gear box 30 were the standard fitments for chessis 1612. The said contention of the appellant was considered by the Tribunal while passing the order under reference and was not found favour with by the Tribunal. Accordingly their appeal was rejected by not accepting the pea of mistake on their part.
4. Shri V. Shreedharan, ld. adv. appearing for the appellant submits that apart from the plea of mistake, M/s. TELCO has taken other pleas also which were argued but have not been considered by the Bench. It is the applicants’ case that a specific contention was raised by M/s. TELCO in their submissions made before the Commissioner as also before the Tribunal that the amount of Rs. 15,290/- per chessis added by the Revenue, as if there was additional fitments to the chessis, has not been collected by M/s. TELCO at all from their customers as is evident from the invoice raised on their customers. M/s. TELCO specifically argued that no extra realisation for fitments of 697 NA engine and GBS 40 gear box which according to them are normal fitments to the 1612 model vehicles have not been affected from their customers. As per the appellants the above submission was this very first submission and was also urged at the time of stay. As per the appellants failure to deal with such a crucial and fundamental point duly raised by them was an error apparent from the records and rectifiable under Section 35C(2) of the Central Excise Act, 1944. Shri V. Sreedharan makes it clear that he is not challenging the findings already arrived at by the Tribunal in respect of the standard fitments of model no. 1612 but is only submitting that in the absence of extra realisation by M/s. TELCO from the customers, no duty demand can sustain against them. He submits that this point though specifically raised has escaped the attention of the Bench and as such no findings are available on the said plea.
5. Arguing further Shri Sreedharan submits that it is well settled principle of law that where a number of pleasure raised which are independent pleas and the decision is based only on one of the pleas raised by the appellant without considering the others, the same amounts to an error apparent on the face of the records and needs rectification. For his above proposition he relies upon the number of decisions, which we would like to discuss in the succeeding paragraphs.
6. The very first question which arises is as to whether non-consideration of one of the submissions raised by the appellants amounts to an error apparent on the face of it. In our views the answer to the above posed question would vary depending upon the nature of the pleas raised by the appellants. If the pleas raised are independent and alternative to each other then non-consideration of any one of them would amount to an error. However, if the arguments of the appellants are directed towards the same plea and are for cast strengthening the said plea, non-consideration of each one of them may not amount to an error apparent on the face of the records requiring any rectification. The Hon’ble Allahabad High Court in the case of Laxmi Electronic Corporation Ltd. v. CIT-1991 (188) ITR 391 (Alld), has held that where the Tribunal fails or ommits to deal with an important contention affecting the merits of the case of same should be deemed to be a mistake apparent from the records. It is worthwhile to reproduce the observations of the Hon’ble High Court for better appreciation:-
“By way of illustration, takea case where an assessee files an appeal raising four grounds, which he urges at the hearing of the appeal. The Tribunal, however, dismisses the appeal only on ground no. 4. Would it not be open to the assessee in such a case to ask for reopening and rehearing of the appeal on the ground that the first three contentions urged by him have not been noticed or discussed by the Tribunal? We think that such power must be held to be inherent in the Tribunal, since it would be a case where the party has suffered prejudice for no fault of his but on account of a mistake or error on the part of the Tribunal. It is a well-settled proposition that an act of court (which, in the context, means and includes a Tribunal of the nature of the Income-tax Appellate Tribunal) should not be prejudice a partly. In such a case, it would not be just to drive the party to a reference under Section 256. It must be left to the Tribunal to re-open the appeal if it finds that it has omitted to deal with an important ground urged by the party. We are not persuaded to agree that the expression “record” in the phrase “mistake apparent from the record” in Section 254(2) means only the judgment. The record means the record before the Tribunal. Failure to deal with a preliminary objection of the nature concerned herein certainly amounts to a mistake apparent from the record.
As stated hereinbefore, where the Tribunal fails or omits to deal with an important contention affecting the maintainability/merits of the appeal, it must be deemed to be a mistake apparent from the record which empowers the Tribunal to reopen the appeal and rectify the same if it is so satisfied; see ITO v. ITAT (1965) 58 ITR 634, a decision of a learned single judge of this court and ITO v. S.B. Singar Singh and Sons (197) 75 ITR 646 (AD) and CIT v. ITAT (1988) 172 ITR 158 (MP)”.
7. Similarly in the case of CIT v. Income-tax Appellate Tribunal-1988 (172) ITR 158 (MP) it was observed as under:-
“If a point which is material for determining the amount of tax is pressed and not considered, it would certainly constitute a mistake apparent from the record within the meaning of the afore said Section 254(2) of the Act and if on the said mistake being pointed out by the assessee, the Tribunal has, in the circumstances referred to above, amended its order, it is obviously, a case of passing an order under Section 254(2) of the Act and cannot be treated to be an order of review”.
8. We also note that the Allahabad High Court in another case of ITO v. Income-tax Appellate Tribunal-65 (58) ITR 634 (Allahabad) has held that where the Tribunal fails to deal with and determine important issues in the case on which depends the title of the plaintiff and maintainability of the suit, the same should be considered as an error. It has been further observed in the said case when such facts are already on record there is no reason to tie the hand of the Court and preventing from doing what it considers to be fair and just. A situation which has arisen because of an over-sight by the court itself and provided the fact omitted to be considered is on the record, there is no reason to hold that such an error would not be one apparent from the record.
9. The appellant has also referred to a number of other decisions, but in our views the Supreme Court’s judgment in the case of Aldoc Pharmaceuticals v. CCE, Jaipur-1995 (76) ELT 7(SC) clinches the issue. It was observed by the Hon’ble Court that when the Tribunal has not considered the documents placed by the appellants, the proper course for the appellants was to file an application before the Tribunal bringing the above documents to its notice and asking for appropriate orders. Similarly the Hon’ble Supreme Court while disposing of the appeal filed by Art Rubber Indus. Ltd. as reported in 1996 (83) ELT A-38 has observed that – “if the counsel for the appellant says that he had argued his points and the Tribunal has not considered it, the proper course for his is to approach the Tribunal according to law and it is for the Tribunal to go into the correctness of the said arguments”. The above decisions of the Hon’ble Supreme Court would show that in cases where arguments were advanced before the Tribunal on a particular point and the same were not considered, it is open to the appellants to approach the Tribunal for rectification of mistake under the provision of Section 35C. We do not agree with the arguments of the ld. SDR that the said decision of the Supreme Court merely remands the matter to the Tribunal. The observations oas reproduced above clearly show that the Hon’ble Supreme Court felt that if a plea was raised before the Tribunal and was not considered by them, the appellant in that case should have approached the Tribunal for rectification instead of filing an appeal before the Supreme Court.
10. By applying the ratios of all the decisions to the facts of the present matter, we find that the appellants indeed argued that there is no evidence by the Revenue showing charging of any differential amount on account of extra items from their customers. The second plea raised by the appellants was that in terms of the provisions Section 4(1)(a) the normal consideration received by them from their customers at the factory gate sale should form the basis of assessable value. We find from the order passed by the Tribunal that the said plea has not been considered and no final view has been taken on the same. As such we hold that there has been a mistake on the part of the Tribunal requiring rectification. Inas much as the Bench who heard and passed the order no. A-1779-1781/Cal/2000 dt. 31.10.2000 is no more available, we order for rehearing of the appeal on the said two issues raised by the appellants. ROM application is disposed of in above terms.
K.K. Bhatia
11. I have carefully gone through the above order proposed by the learned Member(J). Respectfully, I do not find myself in agreement with the same. In this case, the one and the only issue related to whether an amount of Rs. 15,290/- in respect of 697 NA engine and GBS-40 gear box fitted with 1612 model of chassis is liable to be added to the assessable value for the purpose of assessment. This is the only point raised in their appeal before the Tribunal as is evident from para 8 of their Memorandum of Appeal:-
“8. The Appellants replied to the said Show Cause Notice (ANNEXURE B) and inter-alia stated that 697 NA and GBS 40 gear box are fitted with all the SE1612, SK1612 and LP1612 models and the basic premises that additional amount of Rs. 15290/- in respect of 697 NA engine and the GBS 40 gear box had not been added over and above the assessable value is not tanable. All models of 1612 vehicles are fitted with 697 NA engine and GBS 40 gear box the value of 697 NA engine and GBS gear box are included in the assessable of 1612 vehicles on which the Appellants had paid the excise duty. This is evident from the fact that the assessable value remains the same in case of our sale through RSO and sale at factory gate. The vehicle despatch memo annexed to the reply clearly showed that 697 NA engine and GBS 40 gear box are part and parcel of the chassis as standard fitment and not an additional item, so as to attract the burden of additional excise duty”.
12. In my view the above contention of the appellants has been considered in details and the findings are recorded in paras 5 to 7 of the impugned order of the Tribunal which need not be reproduced here. The appellants have now come up with a ROM petition contending that the Tribunal have not recorded any findings on their submission that there is no differential amount collected on account of these extra items from their customers and on that count there is a mistake apparent in it calling for rectification. When the Tribunal in their decision have even rejected the basic premise of their contention that 697 NA engine and GBS 40 gear box are part and parcel of the Chassis of 1612 model as standard fitment and not an additional item and upheld the findings for addition of Rs. 1590/- for these items, then rejection of their stated plea is inherent in it and this cannot be made a ground for reconsidering the merits of their case de-novo under a ROM petition. Besides, I also do not subscribe to the view that Supreme Court judgments in Aldoc Pharmaceuticals and Art Rubber Industries Ltd. clinches the issue as learned Member (J) has put it in para 9 of the above order. This is for the simple reason that both of these orders are not at all on the subject of ‘rectification of mistake’ as provided under the statutory provisions. These are simple remand orders of the Apex court for considering the additional pleas of the appellants. On the contrary the larger Bench of the Tribunal in the case of Om Prakash Bhatia v. Commissioner of Customs, New Delhi – 2001 (131) E.L.T. 305 (T-LB) dismissed the ROM petition of the party on the similar grounds by observing: “Mistake apparent from the record contemplated by this section cannot be one that is to be brought out by a long drawn out argument. Mistake apparent from the record cannot be spelled out on the ground that all the grounds mentioned in the memo of appeal were not dealt with by this Tribunal when it pronounced the final order”.
13. I would therefore reject the ROM petition.
Since there is a difference in opinion between the two Members of the Bench, the following question is referred to the Hon’ble President for resolving the difference:
Whether there is a mistake apparent on record in the order dated 31.10.2000 of the Tribunal and the same would merit recall for reconsideration in terms of the provisions of Section 35-C(2) of the Central Excises Act, 1944.
V.K. Agrawal
14. This is a reference made to me as a Third Member to resolve the difference whether there is a mistake apparent on record in the Order dated 31.10.2000 of the Tribunal and the same would merit recall for reconsideration in terms of the provisions of Section 35-C(2) of the Central Excise Act.
15. Shri V. Sridharan, learned Advocate, submitted that the Motor Vehicle Chasis manufactured by TELCO are fitted according to the configuration and technical specification and the price declared by them is based according to such specification; that the assessable value of the chasis depends upon the fitments; that the Revenue had demanded Central Excise duty holding that various types of 1612 models were fitted with 697 NA engines and GBS 40 gear box but additional amount of Rs. 15,290/- was not added in the assessable value. He further, submitted that the applicants had taken three pleas against the confirmation of duty namely (i) As a result of oversight and/or human error model No. 1612 remained to be mentioned in the Price List along with the models fitted with 697 NA engine and GBS 40 gear box; (ii) During the material period, all the model 1612 chasis were cleared fitted with the said engine & gear boxs; and (iii) They had not collected any extra amount on account of fitment of 697 NA engine and GBS 40 gear box from their buyers. He contended that in the Final Order dated 31.10.2000, the crucial point that they had not made any extra realisation for fitment of said gear box and engine had not been adverted to at all or dealt with; that when an appeal is rejected by the Tribunal, all the grounds are required to be considered and dealt with; that failure to deal with such an important point raised in the Grounds of Appeal and actually argued, is a mistake rectifiable under Section 35C(2) of the Act as also under the inherent jurisdiction of the Tribunal. The learned Counsel relied upon the decisions which have already been mentioned in the Order recorded by the learned Member (J). The learned Advocate also relied upon the decision in Ram Kirpal v. Union of India, 1998 (103) ELT 8 (Guj.) wherein it was held by the Gujarat High Court that “it is a maxim of law that an act of a Court shall prejudice no man actus curaie neminem gravabit. Every Tribunal has an inherent jurisdiction, apart from statutory jurisdiction to correct any error committed by itself. It can invoke such jurisdiction and can exercise it in an appropriate case when its conscience is aroused and if it considers that without the exercise of such powers, the ends of justice would be frustrated.” He also mentioned that the Gujarat High Court observed that “the expression “review” is used in two distinct senses, namely (i) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. The Supreme Court has further held that, when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debei to justitiae to prevent the abuse of its process and such powers inheres in every Court or Tribunal”. The learned Counsel, therefore, contended that as the plea raised by them, which goes to the root of the matter, was not considered by the Tribunal,there is a mistake apparent from the record which needs to be rectified. In this regard he also referred to the judgment of the Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal, 1980 (Supp) S.C.C. 420. Reliance was also placed on the decision in ASCU Ltd. v. C.C.E., Calcutta-I, 2000 (124) ELT 780 (T) wherein it was that reliance on the test reports, which did not show any sign of their being relatable to the assessee or to the goods manufactured by them, is an error apparent on the record and that taking these reports on evidence without discarding the ground raised by the assessee is also an apparent mistake of fact. He also relied upon the decision in I.T.O. v. Income Tax Appellate Tribunal, 1965 (58) STR 634 (All.) wherein Allahabad High Court held as under:
“Where, in a judgment or order of the Appellate Tribunal, an error has crept in, not as a result of any fault of the assessee, but attributable entirely to the Tribunal in having lost sight of a material fact at the time of writing its order or judgment, which fact was duly brought to its notice by the assessee, there would be an error apparent from the record which could be rectified under Section 35 of the Indian Income Tax act.”
In this regard the learned Advocate referred to the (sic) observations of learned Member (Judicial) in Para 10 of the Misc. Order under reference wherein it has been mentioned that “the said plea has not been considered and no final view has been taken on the same.” Finally the learned Member (Technical) to the effect that the only point raised was whether the cost of 697 NA engine and GBS 40 was includible in the assessable value of 1612 model of chasis, is not correct as they had specifically raised the plea of non collection of excess amounts from their buyers and the learned Member(T) has mixed up relief sought with the grounds of appeal; that further this plea can not be said to be inherent in the rejection of the appeal filed by them; that the said plea was a separate plea to be considered independently.
16. Opposing the prayer, Shri V.K. Chaturvedi, learned S.D.R., submitted that the entire case of the applicants was that there was a clerical error in not including the chasis of Model No. 1612 in the list of models filed with 40 gear box and 697 NA engines in their price declaration; that the Tribunal rejected their plea as it was found that there was ample evidence to show that engine 697 NA and gear box GBS 40 were interchangeable with 692 DI engine and GBS 30 gear box; that the Larger Bench of the Tribunal has held in the case of Dinkar Khendria v. Collector of Customs, 2000 (118) ELT 77 (Trib.-LB) that “Rectification of misake is by no means an appeal in disguise whereby an order even if is not valid, is re-heard an re-decided…..” This Tribunal under no circumstances can recall an order passed or issued. Under the cover of “rectification of mistake”, This cannot exercise any power to recall an order validly passed.” He also relied upon the decision of the Delhi High Court in the case of Deeksha Suri v. Income Tax Appellate Tribunal, 1990 (102) ELT 524 (Delhi) wherein it was held that the Tribunal has not been vested with the review jurisdiction. The Tribunal does not have any power to review its own judgment or orders. The power conferred on the Tribunal regarding rectification of mistake “does not contemplate a re-hearing which would have the effect of re-writing an order affecting the merits of the case. Else there would be no distinction between a power to review and a power to rectify a mistake.”
17. I have considered the submissions of both the sides. Section 35C(2) of the Central Excise Act empowers the Tribunal, with a view to rectifying any mistake apparent from the record, I amend any order passed by it under Section 35C(1) of the Act. As observed by the Larger Bench of the Tribunal in Dinkar Kehendria case, supra, the power of rectification of mistake is a limited power and this power is restricted to rectification of the mistake apparent from the record calling for amendment of the order. The learned Member (Judicial) has rightly framed the issue by observing that the answer to the question, as to whether non-consideration of one of submissions amounts to an error apparent on the face of the record, “would vary depending upon the nature of the pleas raised by the appellants. If the pleas raised are independent and alternative to each other then non-consideration of any one of them would amount to an error. However, if the arguments of the appellants are directed towards the same plea and are for strengthening the said plea, Non-consideration of each one of them may not amount to an error apparent on the face of the records requiring any rectification.” I am of the view that the various pleas raised by the appellants were neither independent nor alternative to each other. The plea, non-consideration of which is subject matter of the present applications, was only directed to strengthen the plea that there was a clerical mistake in non mentioning of the chasis of model 1612 in the list of models fitted with 697 NA engine and GBS 40 gear box in the Price Declaration filed by them. This is evident from their submissions in the Memorandum of Appeal wherein they have mentioned that “for each model, the parts/aggregates are fitted according to the configuration and technical specification and the price declared by the appellant is based according to such specifications. The assessable value of the chasis cleared for the purpose of payment of Central Excise Duty depends upon the fitments”. The plea put forth by the appellants was, as observed earlier, that due to a sheer unintended clerical error they did not include the 1612 models in the list of models of vehicles fitted with 697 NA Engines and GBS 40 gear box. They further submitted in support of their plea of clerical error that all 1612 models are fitted with the said engine and gear box and the additional amount of Rs. 15,290/- had not been added over and above the assessable value. In my view these pleas were only to strengthen the plea of non-mentioning Model 1612 in the list of models fitted with 697 NA engines and GBS 40 gear boxes. As rightly pointed out by the learned SDR, the Tribunal did not accept the plea of clerical error and held that the appellants had deliberately refrained from disclosing to the Department that 697 NA engine and GBS 40 gear box were optional fitments in respect of 1612 models and failed to pay the differential duty. I am, therefore, of the view that there is no mistake apparent from the record in the present matter. The cases relied upon by the learned Advocate are not applicable to the facts of the present matter. In Grindlays Bank Ltd. case, the issue involved was whether the Industrial Tribunal was empowered to set aside the ex parte award on the ground that the employees’ representative was prevented by sufficient cause from appearing before the Tribunal. In Ram Kirpal case, the Gujarat High Court observed that the Tribunal found its earlier finding that no evidence had been produced indicating the sale of identical goods at Rs. 50/- or Rs. 60/- per kg. in the market, was not in confirmity with the facts and evidence discussed by the adjudicating authority in the Order-in-Original. In view of this the High Court concluded that it cannot be said that the error is not self evident and could have been decided only by process of reasoning. In the present matter, there is no error which has crept into the order. Similarly both in the Aldoc Pharmaceuticals and Art Rubber Industrials Ltd., the Supreme Court remanded the matter as it found that there was reference to one document in the Adjudication Order itself in Aldoc case and in Art Rubber there was no reference to Rs. 93 lakh already paid by the appellants. Again the facts are different in the case of Laxmi Electronic Corporation Ltd. v. Commissioner of Income Tax in as much the Tribunal failed to deal with the preliminary objection relating to the maintainability of the appeal on the ground of limitation. I am, therefore, of the view that there is no mistake apparent from the record in the Order.
FINAL ORDER
18. In view of the majority view, the Rectification of Mistake Application is rejected.
(Pronounced)