2011 (6) TMI 626 - AT - Central Excise

Application for rectification of alleged mistakes Held that - application proceeds on the presumption that all grounds mentioned in the appeal memo have been actually canvassed by the learned advocate during the hearing. It also overlooks the fact that arguments by both sides should precede dictation of the order. After the hearing is over when the order being dictated is going against any party they cannot be allowed to plead fresh grounds as such a procedure is not a healthy one. The application also proceeds on the assumption that the only submissions which have been specifically discussed in the order have been considered by the Tribunal. It also overlooks that whatever submissions not specifically discussed did not find favour with the Tribunal. The non-acceptance of the submissions/view points urged on behalf of either party cannot be treated as errors or mistakes that too apparent on face of records. not all grounds in the appeal memoranda were argued during personal hearing. Whatever grounds argued before the Tribunal by the learned Advocate have been considered and not found acceptable. This application in my considered opinion stands filed merely because the appeal has been decided against the applicant. There are no errors on the face of the records warranting recall of the order and for rehearing the appeal. application is rejected

Summary

Issues Involved:
1. Application for rectification of mistakes (ROM) in the Tribunal's final order.
2. Alleged non-consideration of grounds and evidence by the Tribunal.
3. Invocation of Section 123 of the Customs Act.
4. Allegations in the show cause notice.
5. Admissibility and consideration of statements and evidence.
6. Jurisdiction of the adjudicating authority.
7. Procedural fairness and opportunity to be heard.

Issue-wise Detailed Analysis:

1. Application for Rectification of Mistakes (ROM):
The application for ROM was filed under Section 129B(2) of the Customs Act, 1962, alleging several mistakes in the Tribunal's final order. The initial ROM application filed on 8-6-2010 was later revised on 14-6-2010. The revised application listed 16 points of alleged mistakes, whereas the initial application listed only five. The Tribunal noted that the application was not for rectifying any mistake but for recalling the order and rehearing the appeal, which is beyond the scope of Section 129B(2).

2. Alleged Non-Consideration of Grounds and Evidence by the Tribunal:
The applicant claimed that 53 grounds in the appeal memo were omitted in the final order. The Tribunal clarified that not all grounds in the appeal memo are pressed during arguments and that only relevant facts and findings are recorded in the final order. The Tribunal emphasized that the submissions not specifically dealt with were those not found acceptable.

3. Invocation of Section 123 of the Customs Act:
The applicant argued that the original authority did not invoke Section 123 of the Customs Act in its order. The Tribunal found this submission factually incorrect, as the original authority had clearly held that the appellants failed to produce valid proof of the non-foreign origin of the seized goods, thus invoking Section 123.

4. Allegations in the Show Cause Notice:
The applicant contended that no allegations were made against them in the show cause notice. The Tribunal refuted this, reproducing relevant portions of the notice that clearly contained allegations against the applicant.

5. Admissibility and Consideration of Statements and Evidence:
The applicant argued that the statement of Shri Zaki Ishrati was not signed by the officer and thus not admissible. The Tribunal accepted that the statement was not under Section 108 but considered it as evidence due to its relevance. The Tribunal also addressed the submission that the statement of Faiyaz Ahmed was recorded under the wrong section, noting that the decision was based on the entire facts and circumstances.

6. Jurisdiction of the Adjudicating Authority:
The applicant claimed that the adjudicating authority was different from the one to whom the show cause notice was directed. The Tribunal noted that the issue was not raised in the first round of litigation and that the appellants submitted to the jurisdiction twice, indicating no prejudice was caused.

7. Procedural Fairness and Opportunity to be Heard:
The applicant argued that M/s. Zarafshan Chemicals Pvt. Ltd., the owner of the gold, should have been heard. The Tribunal found no evidence that the company claimed the gold or participated in the proceedings, thus no opportunity was necessary.

Conclusion:
The Tribunal concluded that the application for ROM was devoid of merits, primarily because it sought to recall the order and rehear the appeal, which is beyond the scope of Section 129B(2). The Tribunal emphasized that all relevant submissions were considered, and the non-acceptance of certain submissions did not constitute errors or mistakes apparent on the face of the record. The application was rejected, with the order pronounced in the open court on 15-6-2011.