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TMI Blog2000 (1) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Counsel pointed out to the Bench that the issue was covered by two judgments of the Tribunal. The first one is M. Ravindra Rao, M.D Dolphin Drugs (P) Ltd. v. CC, Madras - Appeal No. C/28/98 and Order No. 294/98, dated 13-2-1998 and the second case is Dolphin Drugs (P) Ltd. - Appeal No. 73/98, dated 15-1-1998 wherein the Tribunal noted that under similar circumstances the Tribunal held that no proceedings for confiscation arises and it is only if there is violation it is a technical violation and decided the case in favour of the assessee. The Tribunal in para 4 noted that Ld. DR had adopted the reasonings of impugned order. Finally, in penultimate para 5 the Tribunal held as follows :- 5. Following the said two cases, we allow the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. It is stated that appe1lants had been given advance licence No. P/L/3237211 for import of Penicillin G /Cristal and other with a export obligation of 5000 Kgs. of Cloxacilin Sodium. As requested by the assessee the licencing authority had granted an amendment to the above advance licence for changing the import goods and export goods. The amendment is allowed subject to the condition that the assessee shall pay Customs duty for excess import made as a result of the modified import entitlement . The excess import had to be worked out by using standard import output norms prescribed for the export goods. As per the working sheet which they have enclosed, the Commissioner states that excess import in the case of Penicillin G works out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other firms to make imports under the said advance licence. The Commissioner has drawn attention to para 2 of the findings given in the order-in-original on this aspect of the matter and contends that the final order does not deal with these aspects and also about the aspect that the licence itself had laid down a condition in Condition No. 1 (d) in terms of notification that the exempt material shall be used for the manufacture of resultant product specified in Part (E) of the said licence and no portion thereof shall be loaned, sold, transferred or disposed of in any manner. It is submitted that this aspect of the matter has not been dealt with by the Tribunal and also the aspect pertaining to clear violation of Section 5 of Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appellants filed an additional paper book and vehementely argued and contend that there are no mistakes apparent on record. He contends that the Commissioner is trying to reopen a matter which was not the subject matter of the show cause notice and beyond the scope of SCN which cannot be a matter of ROM. He has filed detailed reply to the ROM and took us through the entire records to convince the Bench that the aspect pertaining the technical violation was the only question in the appeal which had been dealt with in the Dolphin's case and the Tribunal having applied the ratio has not committed any error apparent on record. He submits that these pleas pertain to excess importation of duty although those conditions are apparent on the licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderations in a case if the aspect pertaining to question of law has been raised and that question of law has been answered by any of the judgments or by the Apex Court or High Courts, normally, waiver is granted fully and if the issue is totally covered on verification of facts and the ratio thereof, with the consent of both sides, the appeal is taken up and disposed of as per law. (b) In a case where the aspect deals with violation of principles of natural justice or the Commissioner having decided the appeals under the provisions of Section 35F or 129E of the respective Acts, then in such cases also the Tribunal while granting waiver of the amounts would take up the appeal and remand the case for de novo consideration. (c) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been shown in the working sheets, this aspect was required to have been verified before giving a final order. As this aspect of the matter has not been dealt with in the final order, therefore the final order is required to be recalled for the purpose of hearing on all issues which has not been dealt with as brought out, which on perusal, we are also satisfied that there are one or two issues which are required to be heard and findings recorded. 10. Ld. Counsel submits that the aspect pertaining to violation has not been agitated in the ROM and that aspect is not required to be recalled. 11. However, we notice from the final order that the Tribunal has not bifurcated the issued but merely held that the Dolphin's case is applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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