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TMI Blog2001 (2) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... hat originally there was a difference of opinion between the two Members as regards the confirmation of demand of duty in respect of 98 bills of entries, which dispute was resolved by the Third Member. However in respect of 35 bills of entries both the Members concurred and confirmed the demand of duty. Drawing attention to the Order, Shri Chandrasekhar submitted that the main evidence relied upon by the Member (Judicial) as also by Member (Technical) was the invoices retired by the appellants from their banks and it was held that the said documents prove beyond doubt that there has been under valuation. However, he pointed out that these invoices which were retired from the Bank and were held to be supporting the department s case were limited to only 27 bills of entries. There were no bank retired documents in respect of the balance 8 bills of entries. As such he submitted that confirmation of demand of duty in respect of all the 35 bills of entries was an error apparent on the face of it and should be rectified. To support his argument that the demand in respect 35 bills of entries were based upon the bank endorsed invoices, he referred to para 28 of the Order of Member (Judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f packing of goods in such a way so as to hoodwink the authority and to mislead them . Further para 20 of the said Order is to the effect that as such there is ample evidence in the shape of documents, actual invoices retired from the banks and the statements of various persons to arrive at the irresistable conclusion that the importers were guilty of suppression of the actual goods and indulging in extensive under-valuation of the goods . Para 33 further records as such it is the appreciation of the entire facts on record which forms the basis for deciding the disputable question of fact. The appreciation of the entire facts on record as already held by us, is a clear pointer towards the activities of the appellants as regards the misdeclaration and under-valuation by them. The evidences were in the shape of invoices retired after making payment to the suppliers through their banks, accounts of payment of difference between the invoices value and the actual value paid abroad in respect of the various consignments, amounts received in cash by S/Shri R.S. Jain and A.K. Jain for purpose of remitting the differential duty through Hawala, the actual invoices and duplicate invoices sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions of both the sides cannot be called as an error apparent on the face of it. The same should be evident from the records and should not be the one which is subject matter of the disputed question of fact between both the sides and is debatable. The Tribunal in the case of Shree Laxmi Textiles Mills, Bombay v. C.C.E., Bombay - 1987 (29) E.L.T. 723, after taking into consideration the various judgments of the High Courts and the Supreme Court has drawn a clear distinction between powers of review or revision and powers of rectification. It has been held that the error must be something very obvious and manifest and that a mistake to establish which a very elaborate process of reasoning is called for, cannot be said to be a mistake apparent from the record. In the present proceedings the applicants have claimed the relief of rectification by submitting that the confirmation of demand in respect of 8 bills of entries was a mistake apparent on the face of the record. We are afraid such a suggestion from the applicants is not acceptable. It is a point of view held by both the Members which has resulted in confirmation of demand in respect of total of 35 bills of entries which vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y we set aside the penalty of Rs. 2 lakhs on M/s. Laxmi Narayan Ramniwas and modify our Order to that extent. 11. All the applications are disposed of in the manner indicated above. 12. The last application No. 30/99 is only for early hearing of the Rectification of Mistake applications which becomes infructuous on disposal of the Rectification of Mistake application itself. Sd/- (Archana Wadhwa) Member (J) 13. [Dissent per : P.C. Jain, Vice-President]. - I have carefully perused the judgment on the ROM application proposed by my ld. sister, Mrs. Archana Wadhwa, Judicial Member. But I regret, with respect, that I do not agree with the conclusion reached by her on one of the points raised in the subject application. 14. There appears to be no doubt in my mind that I agreed with the ld. Judicial Member in respect of 35 bills of entry or so because her order had stated, inter alia, that there were bank endorsed invoices in that respect. It is this solid evidence in respect of 35 bills of entry or so which tilted the scale on demand of duty on account of under-valuation. The expression or so after 35 bills of entry in my judgment/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adhwa) Member (J) (P.C. Jain) Vice President 19. [Order per : Justice K. Sreedharan, President]. - This application is one filed under Section 129B(2) of the Indian Customs Act praying for rectification of mistake that is stated to have crept in the Final Order dated 19-11-1998. Section 129B(2) allows the Tribunal to rectify any mistake apparent from the record and consequently, to amend any Order passed by it. The mistake that calls for amendment in the earlier Order must be one which is apparent from the record. The mistake cannot be one brought out on a long drawn-out argument. With this understanding of the provisions contained in Section 129B, I proceed to examine the prayer made by the petitioner in this application termed as application for rectification of mistake. 20. The dispute which gave rise to Appeal Nos. C (SB) 504-508/92 at the Eastern Bench of the Tribunal, arose out of the import of Brass Dross of Copper Scrap by the appellant, M/s. Cosmosteels (P) Ltd. and others. The imports were covered by 173 bills of entry. These bills of entry were grouped into three categories. The first category consisted of 98 bills of entry in relation to which duty- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of mistake, but is one for reviewing the earlier Order. Such an application is outside the purview of Section 129B(2) of the Customs Act. In this view, Member (Judicial) opined to reject the application. Member (Technical) who heard the application took the view that while deciding the issue in appeal, he observed that there were Bank Attested Invoices in relation to 35 invoices or so. This observation, according to him, would show that he was not very sure about the number and so the application for rectification of mistake is sustainable. In view of the difference of opinion expressed by Member (Judicial) and Member (Technical) on the maintainability of this application, the matter has come up before me as a Third Member. 24. As stated earlier, goods were imported under 173 bills of entry, out of those bills of entry, difference of opinion was expressed between Member (Judicial) and Member (Technical) in relation to 98 bills of entry. That resulted in reference to a Third Member. The question that was referred to the Third Member, was - Whether in the facts and circumstances of these matters, differential duty of Rs. 1,27,88,063.25 is sustainable against the appellants or ..... 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