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TMI Blog1993 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19-2-1986 & 24-2-1986 Dismissed 2. C/ROM/4/86-A Misc. Order No. 90 to 93/86-A, dated 7-5-1986 Dismissed 3. C/ROM/30/86-A (C/A. 2176/83-A) & C/ROM/37/86-A (C/A. 357/84-A) Misc. Order No. 38 & 39/87-A, dated 19-2-1987 Dismissed 4. C/ROM/17/87-A in C/A. 2176/83-A & C/ROM/23/87-A in C/A. 357/84-A Misc. Order No. 163 & 164/87-A , dated 1-9-1987 Dismissed 5. C/ROM/4/88-A C/Misc 51/88-A & C/Misc. 51/88-A in CD/SB/2176/83-A Misc. Order No. 82/90-A, dated 25-5-1990 Tribunal held that ROM is maintainable from an order passed rectifying a mistake and limitation has to be counted from that date when the ROM order was passed. 6. C/Misc. 51/88-A Pending before the Tribunal 7. C/ROM/8/92-A Pending before the Tribunal 2. A perusal of the above chart shows that ROM applications filed by the appellants have been dismissed. Briefly the facts of the case are that the appellants had imported a Toyota Corona 1600 DLX Sedan and had presented a manufacturers invoice at the time of assessment. The manufacturers invoice was accepted and valuation was done after adding the freight and insurance to the f.o.b. value stated in the invoice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that the circular was binding on the Income-tax Officer." She relied on para 12 which appears on page 4 of the paper-book and pleaded that natural justice demands that departmental circulars have binding nature as per principles of natural justice, equity and good conscience and that relief envisaged under the departmental circulars ought to be granted by way of rectification. She again referred to Dr. Prem Kumar's case 1989 (40)) E.L.T. 340. She pleaded that the facts of the appellants case are similar to Dr. Prem Kumar's case and there is no reason why the appeals should not be allowed. She also stated that the matter had come up for hearing on 18th July 1988 and on the request of the appellants the matter was adjourned awaiting decision of Dr. Prem Kumar's case which was heard on 28th June, 1988 and as such the ROM application filed by the appellants has to be allowed. Since the Tribunal had adjourned the ROM for awaiting decision in the case of Dr. Prem Kumar, she argued that the car stereo, air-conditioner could not have been assessed separately. She referred to the CCP which appears on page 18 of the paper book. Serial No. and Part of the ITC Schedule mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons have been filed with reference to section 129B(2) of the Customs Act, 1962. For the proper appreciation of the legal position, section 129B(2) is reproduced below : 129B(2) : "The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal :" 9. Section 254(2) of the Income-tax Act, 1961 is reproduced below : 254(2) : "The appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer :" 10. A perusal of section 129B(2) of the Customs Act, 1962 and section 254(2) of the Income-tax Act, 1961 shows that pari materia the language of both the sections is ditto. In the repeated ROMs filed by the appellants the main prayer of the appellant is for allowing trade discoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No. 5351 of 1983). It was dismissed by the Supreme Court on 19-3-1984 and the Tribunal order was thus confirmed. We are at a loss to understand as to how reversal of our earlier interpretation can be canvassed before us now. Nor does a later order of the Tribunal giving a different interpretation make our earlier order a mistake. If at all, it is the earlier interpretation which stands confirmed by the Supreme Court and not the later interpretation." 12. Hon'ble Supreme Court in the case of Collector of Customs, Bombay v. Swastic Woollens (P) Ltd. reported in 1988 (37) E.L.T. 474 (S.C.) = 1988 (18) ECC 352 at 357-358 had held as under : " ........... The decision on such a question of fact must be arrived at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority be it the Supreme Court or the High Court may a different perspective of that question, in our opinion, is no grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1980, far from controverting his observation, merely, stated that his order was silent on the question of valuation and requested for its amendment. His order was not silent on that issue. On the contrary, he observed that the question was not pressed before him; 9(e) the decision in 1977 (109) ITR 574 (Additional Commissioner of I.T., A.P. v. P.R.M.S. & Co.) relied upon for the applicant, hardly supports his case for rectification. Quite to the contrary, it was laid down therein following (1971) 82 ITR 50 (S.C.) - T.S. Balaram v. Volkart Bros. - that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be, conceivably, two opinions. Nor is a decision on a debatable point of law a mistake apparent from the record. Much less can it be a mistake which, if at all, can be discovered or inferred from facts that are not on the record, like for example, the order of the Assistant Collector in the case of M/s. Bombay Oil Mills; 9(f) in 1984 (18) E.L.T. 310 (Entremonde Polycoaters v. Collector of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the above discussion, we hold that there is no mistake apparent from the record which calls for rectification. The application for rectification is rejected." 15. Hon'ble Calcutta High Court in the case of Shew Paper Exchange v. ITO reported in 1974 (93) ITR 186 had held as under : "that the normal rule is that the remedy of review is a creature of a statute and if the statute does not contain powers for review, then the power cannot be exercised. Review proceedings of this kind are those where a party as of right can apply for reconsideration of the matter already decided upon after a fresh hearing on the merits of the controversy between the parties. Such a remedy must be provided by the statute. The inherent power to rectify a wrong committed by itself, by a court or tribunal, is not, really speaking, a power to review. The two powers operate in different fields and are different in essential quality or nature." 16. In the case of CIT v. Jagabandhu Roul reported in (1984) 145 ITR 153, the Hon'ble Orissa High Court had held as under : "that no reference had been made by the Tribunal, while disposing of the appeal, to Dhadi Sahu's case (1976) 105 ITR 56 (Orissa) beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being rendered nugatory. " 19. The facts and circumstances of the case do not justify the exercise of inherent power and as such no interference is called for. 20. In the result, the miscellaneous application as well as ROM are dismissed. Sd/- (Harish Chander) President 21. [Per : P.C. Jain, Member (T)]. - I have carefully gone through the judgment proposed by the learned Hon'ble President but I regret, with great respect, that I am unable to agree with it. 22. It is true that the applicant's five earlier applications for rectification of mistake have been dismissed. Yet I feel that in the peculiar facts and circumstances of this case particularly when the applicant had been stressing upon the fact that the department has not been honouring its own circular for assessment of cars - old or new - in this particular case has gone unheeded by all authorities right from the original authority, namely the Assistant Collector including the Tribunal which passed its final Order Nos. 24-27/85, dated 15-1-1985 [1995 (78) E.L.T. 122 (Tribunal)]. The Tribunal in passing that order dated 15-1-1985, as is apparent therefrom, has not even adverted to the department's circular. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ................................... (b) ................................................ (c) The departmental practice and written instructions in regard to principle to be followed for determination of valuation for Customs Tariff, on the basis of list prices in the country of manufacture less trade discount have been erroneously rejected. The list price/catalogue price is Yens 9,97,000/ Rs. 36,480/- in Japan as per certificate enclosed. [extracts from memo of appeal before the Collector (Appeals)] III. In support of the claim under ground No. 1 an analytical study of Section 14(1)(a) read with particularly Rules 3(d) and 7 and the method laid in the Central Government circular for valuation, which are reproduced for ready reference, will bear out that the only basis for the valuation of the vehicle warranted were the list/ex-factory price published in the Word Car Price Book, according to the meanings of the word 'price' at which such or like 'goods' are 'ordinarily' sold, or offered for sale 'for delivery at' the time and place of importation or exportation 'as the case may be' in the course of International Trade. [extracts from written submissions before Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to be placed on this document for purposes of valuation as has been correctly done by the authorities below. When an un-impeachable document like the invoice issued by the manufacturer himself is available there cannot arise the question of any other documents on the basis of which assessable value has to be computed in respect of imported goods. There is no need to go to the catalogue price, or any other price or imported car price book to ascertain the value when a document produced by the importer himself is available and this document represents the true amount paid by him. We, therefore, reject the pleas for revising the value of the car." 22.2 It is apparent from the aforesaid para of the final order that the Tribunal has rejected the contention of allowing the discount of 15% on the basis of manufacturer's invoice alone and not after considering the Government's circular adverted to by the appellant/applicant in its appeal memo. The Tribunal has brushed aside the catalogue price or any other price or imported car price book in the face of availability of manufacturer's invoice. The Tribunal has not considered the effect of the circular and its binding character i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cars deviates from the scope of Section 14 of the Customs Act that circular and practice would still be binding on the assessing authorities in view of the above observations of the Supreme Court in Ellerman's Lines case. I, therefore, hold that the applicant is entitled to the benefit of trade discount of 15% on the list price of the car, as observed by the Tribunal in Prem Kumar's case regarding the practice of assessment and as stated in the department's own circular. Since the authorities below have not examined the assessment of car from the aforesaid angle, I direct them to do the same and assess the duty accordingly in rectification of Tribunal's order dated 15-1-1985. 22.5 Regarding the second plea for allowing the depreciation for two quarters in terms of the circular I find that the applicant's plea is only partially sustainable. The depreciation is to be counted in terms of the said circular from the date of registration of the motor vehicle in the owner's name to the date of actual shipment of the motor car. The appellant/applicant should, therefore, be given the benefit of the depreciaton for the period reckoning from the date of registration in his name to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it a review or by taking the stand that the statute has provided for an appeal to Supreme Court. Relying on the Supreme Court decision in the case of Commissioner of Income-tax v. Bhurangiya Coal - 1958 (34) ITR 802, it was argued that error apparent constitutes inadvertent omission to deal with a ground of appeal. In the grounds of appeal, the applicant has urged that the Collector (Appeals) has ignored the Department's circular for the assessment of cars on list price less discount and the Tribunal has also omitted to consider the plea. The ld. Counsel reiterated the case law and the submissions that Department circulars are binding on the authorities. By not considering it in its order, there is an error in the Tribunal's order dated 15-1-1985. The ld. Counsel also cited the Tribunal's decision in the case of Prem Kumar v. Collector of Customs - 1989 (40) E.L.T. 340 (Tribunal) which shows that the general practice to assess the cars to duty on list price less 15% discount has been recognised by the Tribunal. It was pleaded that the order proposed by the ld. Member (Tech.) allowing the ROM should be the final order. 25. Ld. D.R., Shri A.K. Singhal contended with reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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