9911796707
TMI Blog1996 (7) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... ater order dated 24-9-1993 in respect of `cassettes by excluding two video cassettes at S. No. 9 10 of Annexure A to the Panchnama from the earlier order dated 31-7-1992 regarding their release. The said two video cassettes were absolutely confiscated because of their being obscene. 3. By his subject application, Shri Leeladhar alleged that he is willing to deposit the redemption fine of Rs. 16,000/- but the Collector is preventing him to perform that part of his duties by evading to issue the challans to him. An interim Order No. M-348/Cal/95, dated 8-6-1995 was passed by a Bench of the Tribunal seeking Collector s comments on the allegation of Shri Leeladhar 4. As a result, Commissioner of Central Excise, Bhubaneswar has filed the other subject Miscellaneous Application seeking modification of Tribunal s order dated 31-7-1992 read with order dated 24-9-1993 on the ground of certain facts which were not placed before the Tribunal by the Revenue when Tribunal passed the aforesaid two orders. Those facts are as follows : as set out in the Revenue s Miscellaneous Application :- 7. That the goods were seized in the year 1983 and it included electronic goods such as Video Cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because it has been stolen, redemption fine of Rs. 8,000/- should be struck down while modifying the order. 7. Learned JDR Shri B.B. Sarkar submits that the Tribunal has no power to grant compensation as held by the Hon ble Orissa High Court in the case of Golden Hind Shipping (I), Pvt. Ltd. [1993 (65) E.L.T. 613]. He also submits that plain fact remains that Tribunal s orders dated 31-7-1992 read with order dated 24-9-1993 cannot be implemented in view of the sale of some goods and theft of others. He, therefore, prays for modification of the order. He also raised the question that redemption fine of Rs. 8,000/- cannot be struck down because liability to confiscation of goods remains despite the theft of camera. It will also amount to review of the order which is beyond the scope of a ROM Application. 8. We have carefully considered the pleas advanced from both sides. It is apparent that the fact of sale of some goods and theft of others was not brought to the notices of the Tribunal when it passed its orders dated 31-7-1992 and 24-9-1993. 9. We have carefully considered the pleas of the learned Advocate opposing the modification of Tribunal s order dated 31-7-1992 as praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a reasonable opportunity being heard." 6. The power to amend its order, it is dear, lies with the Tribunal, if a mistake apparent from the record has crept in its order. What is the scope of the expression mistake apparent from the record . This expression uses three words which are significant : (a) mistake , apparent and record . It is clear from the facts and circumstances of this case and the findings of the Tribunal, as set out in the Tribunal s final order dated 14-2-1995 that it is the assumption of the Tribunal that the goods are still available for redemption. It is only for this reason that the Tribunal, while upholding the confiscation of the goods gave the option to the Applicants to redeem the goods on payment of fine in lieu of confiscation. It was not brought to the notice of the Tribunal, at the time of hearing of the Appeal or before passing of the order that the goods had already been disposed of by auction, being semi-perishable in nature and Rs. 1,12,000 /- had been realised as the price of the goods which were disposed of in auction sometime in 3rd week of July, 1994 after passing of the impugned order dated 6-7-1994. Appeal by the Applicants was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that the other two persons did not challenge the order of Deputy Collector was, therefore, found to be a patent error of fact which led to a wrong order. 10. Similarly, in EID Parry s case (supra), apparent mistake was found in the authorisation by the Collector under Section 35B, which is always a fact occurring subsequent to an order impugned in appeal. 11. It is, therefore, clear that Tribunal s assumption in passing the Order dated 14-2-1995 to the effect that the goods are in existence is clearly a mistake apparent from the record. Section 129B(2) therefore, gives the necessary power : tathe Tribunal to rectify the Order dated 14-2-1995. 12. There is yet another general principle enunciated by Court s which gives power to the Tribunal to rectify the mistake of the type found in the present case. Punjab High Court in Mangat Ram Kuthiala v. C.I.T. [38 (ITR 1 at page 11)] has observed as follows as reported in page 485 in Prativa Rani s case (supra) :- In the said judgment, their Lordships had observed - Now it is a settled rule that a Judicial Tribunal can recall and quash its own order in exceptional and rare cases when it is shown that it was obtained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they should be reimbursed the remaining sum after deduction of fine and penalty is not acceptable. Tribunal does not have the power, as held by the Hon ble High Court of Orissa in the case of Golden Hind Shipping (supra) to grant compensation in exercise of its power as an appellate authority under the Customs Act. 15. Various judgments of the Supreme Court and the High Courts cited by the learned Consultant have already been noticed by Hon ble Orissa High Court which is binding on us being the only judgment directly on lack of power with the Tribunal to grant compensation. Judgments of the Tribunal, cited by the learned Consultant in which market value of the seized goods has been awarded as compensation were delivered before judgment in Golden Hind Shipping (supra). These judgments, therefore, have no loner binding force. Further, in our view, grant of compensation or damages on account of wrongful acts, if any, of the Revenue, would call for a proceeding under Law of Torts and not under the Special Act like Customs Act, for a tortious act, if at all, of the Revenue. Those proceedings lie elsewhere and not before this forum." 10. In view of the ratios in this Bench judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
