1992 (2) TMI 209 - AT - Central Excise

Summary

Issues:
Rectification of mistake apparent on the face of the record in the Tribunal's order dated 5-9-1988 in Order No. 496/88. Discrepancy in the statement of Manoharlal Jain regarding the purchase of foreign gold by him from Radhe Shyam Agarwal. Confiscability of currency seized from Manoharlal Jain's possession. Recall of Tribunal's order to list both appeals for disposal on merits.

Analysis:
The ROM applications were filed for rectification of a mistake apparent on the face of the record in the Tribunal's order dated 5-9-1988. Petitioner Radhe Shyam Agarwal claimed that the finding of the Tribunal regarding the purchase of foreign gold from him by Manoharlal Jain was factually incorrect. Manoharlal Jain denied making any such statement and clarified that the seized amount represented the sale proceeds of silver, not gold. The Tribunal's order had erroneously stated that Manoharlal Jain sold foreign gold to Radhe Shyam Agarwal. Therefore, Radhe Shyam Agarwal sought rectification of these errors and a reconsideration of any penalty imposed.

Petitioner Manoharlal Jain's counsel also filed a rectification application, emphasizing that the currency was seized from Manoharlal Jain's possession, not Radhe Shyam Agarwal's. The appeal of Manoharlal Jain was still pending, with a crucial issue regarding the confiscability of the currency. The Tribunal's previous order had reduced the penalty on Radhe Shyam Agarwal due to the confiscation of currency, which would impact Manoharlal Jain's appeal significantly. Therefore, the factual errors needed rectification to ensure a fair hearing for both parties.

The Department's representative acknowledged that the Tribunal's finding regarding Manoharlal Jain's statement was factually incorrect. The issue of confiscability of the currency was more relevant to Manoharlal Jain's appeal as it was seized from his possession. The Department agreed that the order in Radhe Shyam Agarwal's case needed modification in light of the evidence on record. In the interests of justice, it was proposed to recall the order in Radhe Shyam Agarwal's case and list both appeals together for a comprehensive review.

After considering all submissions, the Tribunal found the contentions regarding factual incorrectness to be valid. It was noted that Manoharlal Jain's appeal was still pending, and the statement did not support the claim of selling gold to Radhe Shyam Agarwal. Therefore, in the interests of justice, the Tribunal recalled its previous order in Radhe Shyam Agarwal's appeal. Consequently, the rectification application was allowed, and the reference application by Radhe Shyam Agarwal was dismissed.

Furthermore, the application by Manoharlal Jain for calling the currency was dismissed, with the direction to file it when the appeals were listed. In the interest of justice, both appeals were ordered to be listed for a hearing after due notice to both parties, ensuring a fair and comprehensive disposal on merits.