2004 (3) TMI 601 - AT - Central Excise

Summary

Issues Involved:
1. Self-contradictory findings on a highly technical matter.
2. Determination of goods as computer software.
3. Consideration of allegations in the show cause notice and its annexures.
4. Non-following of binding decisions.
5. Consideration of a departmental circular for assessment value.
6. Invocation of Section 11A(1) of the Customs Act.
7. Imposition of penalties under Section 11AC and Rule 173Q.
8. Confiscation of plant and machinery.

Detailed Analysis:

Issue 1: Self-Contradictory Findings on a Highly Technical Matter
The applicant argued that the Tribunal's order contained self-contradictory findings. Initially, the Tribunal noted that the matter was highly technical, requiring expert opinion. However, the Tribunal proceeded to make findings on the merits, which the applicant claimed were contradictory. The Tribunal clarified that it had remanded the matter for reconsideration due to a violation of natural justice, as the expert opinion was not shared with the appellants.

Issue 2: Determination of Goods as Computer Software
The applicant contended that the adjudicating authority had already determined the goods as computer software, and there was no departmental appeal against this finding. The Tribunal found that the Commissioner had not definitively concluded that the goods were computer software. Instead, the Commissioner had distinguished between CD ROMs and CD Audio/Video. The Tribunal concluded that the items were not computer software, and this finding was based on the evidence and arguments presented.

Issue 3: Consideration of Allegations in the Show Cause Notice and Its Annexures
The applicant argued that the noticee should only address allegations in the main show cause notice, not in the annexures. The Tribunal noted that the show cause notice explicitly stated that the annexures were an integral part of it. The applicant had responded to the show cause notice without contesting the annexures' validity. Thus, the Tribunal found no mistake apparent on the face of the record.

Issue 4: Non-Following of Binding Decisions
The applicant claimed that the Tribunal did not follow binding decisions. The Tribunal explained that it remanded the matter to reconsider whether the concessional rate of duty under Notification No. 2/95 could be extended to the goods, considering a relevant case law that was not available to the lower authority earlier.

Issue 5: Consideration of a Departmental Circular for Assessment Value
The applicant argued that the Tribunal erred by not considering Circular No. 330/46/97 dated 20-8-97, which was binding on the authorities. The Tribunal clarified that it remanded the matter to allow the applicant to present the circular before the lower authority for consideration.

Issue 6: Invocation of Section 11A(1) of the Customs Act
The applicant contended that the Tribunal's findings on the invocation of the longer period of limitation were indefinite. The Tribunal noted that the matter was remanded to verify if the appellant had indicated on the invoice that duty would be payable as determined by the authorities. If such remarks were made, there would be no intention to evade duty, and the longer period of limitation would not apply.

Issue 7: Imposition of Penalties under Section 11AC and Rule 173Q
The applicant argued that the Tribunal's findings on penalties were per incuriam of statutory provisions. The Tribunal found that penalties were imposed for clandestine removal of goods and noted that the quantum of penalty would depend on the duty adjudged in the de novo proceedings. The Tribunal allowed the appellant to cite authorities against the imposition of penalties under both provisions during the remand.

Issue 8: Confiscation of Plant and Machinery
The applicant contended that the Tribunal did not record a finding on the confiscation of plant and machinery but remanded the matter. The Tribunal noted that the lower authority had not provided reasons or findings for repeated offenses, necessitating a remand for re-examination.

Majority Order:
The majority of the Tribunal members concluded that the Rectification of Mistake (ROM) application was not within the scope of Section 129B(2) of the Customs Act, which only allows for rectifying mistakes apparent on the record, not for reviewing decisions reached based on evidence. The application was thus rejected.

Separate Judgment:
One member dissented, arguing that the finding in para 7(b) that the items were not computer software was contrary to the earlier finding in para 7(a) and violated principles of natural justice. This member proposed deleting the last line of para 7(b) and remanding the matter for re-examination.

Final Conclusion:
The ROM application was ultimately rejected by the majority, maintaining that the Tribunal's original decision was reached through a proper appreciation of the evidence and was not subject to rectification under Section 129B(2).