2020 (9) TMI 132 - AT - Customs

Rectification of mistake - mistake apparent on the record or not - charges under Regulation 10(d) of CBLR mainly based on statements placed on record - HELD THAT - It has emerged that there is no statement which has not been supplied to the appellant and the charges made in para 7.2 of the Show Cause Notice is not based on any statement. It was presumed by appellants and this Court at the time of earlier decision that charge in para 7.2 of Show Cause Notice is based on statement. Since remand has been made with direction to to decide after supplying a copy of a non existing statement, it cannot be implemented as it is. It is seen that the order states that the only evidence that might exist in the favour of Revenue could be in the non existing statement which appellant and Tribunal assumed to be existing. The order already observes that there is no evidence to support the charge made under Regulation 10(d) of CBLR, 2018 except for this non existing statement. Therefore, there is clearly an apparent mistake in the order. Moreover, the order in the present form cannot be acted upon as there is no statement that can be provided to the applicant. ROM application allowed.

Summary

Issues:
Rectification of mistake in Tribunal's order regarding charges under Regulation 10(d) of CBLR, 2018.

Analysis:
The ROM application was filed by M/s B.N. Thakkar & Co seeking rectification of a mistake in the Tribunal's order dated 04.06.2020. The applicant's counsel argued that while the order set aside all charges except under Regulation 10(d) of CBLR, 2018, the matter was remanded based on an alleged statement not provided to the appellant. The counsel contended that the Tribunal's decision relied on a statement not in their possession, leading to a mistake apparent on record. The Authorized Representative for the Respondent opposed the rectification, citing legal precedents. The Tribunal acknowledged the absence of the alleged statement and the lack of evidence to support the charges under Regulation 10(d) of CBLR, 2018. Consequently, the Tribunal found an apparent mistake in the order and allowed the ROM application, setting aside the charges under Regulation 10(d) and allowing the appeal.

The Tribunal's order highlighted the absence of the alleged statement crucial to the charges under Regulation 10(d) of CBLR, 2018. It noted that the Adjudicating Authority failed to counter the appellant's arguments and lacked evidence to establish pre-knowledge of the cargo's nature. The Tribunal emphasized that the charge was confirmed solely based on a statement not provided to the appellant, rendering the impugned order unsustainable. The Tribunal's decision to remand the matter for fresh adjudication after supplying a non-existing statement was deemed unimplementable due to the lack of evidence supporting the charge under Regulation 10(d). Consequently, the Tribunal allowed the ROM application, setting aside the charges under Regulation 10(d) and allowing the appeal.

In conclusion, the Tribunal recognized the mistake in directing a remand based on a non-existing statement crucial to the charges under Regulation 10(d) of CBLR, 2018. The Tribunal's decision to set aside the charges and allow the appeal was based on the absence of evidence supporting the allegations and the inability to provide the alleged statement to the appellant. The rectification of the order was deemed necessary to correct the error and ensure a fair decision based on the available evidence.