2015 (12) TMI 1434 - HC - Customs

Writ petition against the order of Tribunal refusing to rectify the error which was apparent on record - Tribunal, which, by an order dated 6.2.2014 partly allowed the appeal by holding that the petitioner is eligible for the benefit of CVD as per Serial No.202A of Notification No.21/2002-Cus dated 1.3.2002. The Tribunal further held that since separate value of 16mm, 20mm, 25mm and 32mm TMT bars was not made available, separate duty cannot be assessed for 16mm TMT bars Held that - As can be seen from the impugned order dated 23.6.2014 passed on the rectification of mistake application made by the petitioner, the Tribunal has rejected the application on the ground that in the absence of separate value of 16 mm TMT bars, separate duty cannot be assessed for 16 mm TMT bars. As noticed hereinabove, the learned counsel for the petitioner has clearly demonstrated before the court that the relevant material to establish the value of 16 mm TMT bars was already there on the record in the form of the bill of lading indicating the quantity of goods as well as the commercial invoices indicating the price of the 16 mm TMT bars. Therefore, the duty of 16mm TMT bars can easily be worked out on the basis of the available record. Under the circumstances, the finding recorded by the Tribunal in the order dated 6.2.2014 as well as in the impugned order dated 23.6.2014 made on the rectification application to the effect that separate value of 16 mm TMT bars was not available, is clearly incorrect and contrary to the record. Under the circumstances, to that extent the finding recorded by the Tribunal is perverse to the record of the case. The impugned order dated 23.6.2014 being contrary to the record of the case, therefore, cannot be sustained. - Decided in favour of assessee.

Summary

Issues:
1. Maintainability of the petition before the High Court.
2. Rectification of mistake application regarding the value of 16 mm TMT bars.

Issue 1: Maintainability of the petition before the High Court

The High Court addressed the preliminary objection raised regarding the maintainability of the petition, emphasizing that under section 130E of the Customs Act, an appeal against the Tribunal's order on duty rate or goods value determination lies with the Supreme Court. However, the High Court noted that the dispute in this case did not directly relate to duty rates or goods value but centered on a factual error by the Tribunal regarding the availability of the value of 16 mm TMT bars. As the issue was narrow and factual, not directly linked to duty or value determination, the High Court deemed it appropriate to entertain the petition under Article 226 of the Constitution, rejecting the objection to its maintainability.

Issue 2: Rectification of mistake application regarding the value of 16 mm TMT bars

The petitioner filed a rectification of mistake application challenging the Tribunal's rejection based on the absence of separate value for 16 mm TMT bars. The petitioner argued that the necessary information, including the quantity and price of the bars, was available in documents like the bill of lading and commercial invoices. The High Court agreed with the petitioner, finding that the Tribunal's conclusion of the unavailability of the value was incorrect. The Court highlighted that the relevant data was indeed present in the records, making it feasible to calculate the duty for the 16 mm TMT bars. Consequently, the High Court deemed the Tribunal's decision as perverse to the case record, quashing the impugned order and directing the Tribunal to reconsider the rectification application after a proper hearing and review of the available material.

In conclusion, the High Court allowed the petition, setting aside the Tribunal's order and instructing a fresh consideration of the rectification application with an opportunity for both parties to present their arguments and evidence.