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TMI Blog2003 (11) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... brics, Polyster Taffeta Fabrics, 100% Nylon Fabrics and Polyclass. According to him, these are goods notified u/s 123 of the Act inasmuch as, Notification No. 204-Cus., dated 20-7-84 covers fabrics made wholly or mainly of synthetic yarn . The learned Advocate for the applicants, however, contended that the subject goods have been licitly imported by the applicant company through a Customs Port, availing the exemption under Customs Notification No. 53/97, dated 3-6-97 and these are not smuggled goods. He has referred to various paragraphs in the SCN to prove the above point. He contended, therefore, that the provisions of Section 123 are not applicable to the subject goods. He has, placed reliance on a judgment of the Honourable High Court at Calcutta in Roop Chand Jain v. Collector of Customs (Preventive), Calcutta - 1996 (88) E.L.T. 335 (Cal.) and the confirmation of the above order by the Apex Court reported in 1998 (97) E.L.T. A138. It is not the case of either side that the goods are not goods notified under Section 123 of the Act. As per sub-section (2) of the above said section, the provisions of the said section will apply to gold, (and manufactures thereof), watches and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en though in such cases the question of discharging burden of proof may not arise this is not relevant as, the question here is of making an application for settlement in relation to goods to which Section 123 applies. By a plain reading of the provisions in Section 127B (1), no application can be made in relation to goods to which Section 123 applies. As earlier stated most of the goods covered in the impugned SCN are the ones to which Section 123 applies. 3. In the Miscellaneous Application, it has been contended that their earlier application filed under sub-section (1) of Section 127B of the Customs Act had been rejected vide the above mentioned order, inter alia, stating that by a plain reading of the provisions under Section 127(1), no application can be made in relation to goods to which Section 123 applies. As earlier stated most of the goods covered in the SCN are the ones to which Section 123 applies . 4. In the Miscellaneous Application, it is submitted that goods seized on 23-5-2002 and involved in the proceedings, in respect of which their application had been disallowed as stated above, are pre-dominantly fabrics made out of cotton. This contention has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise - 1987 (27) E.L.T. 315 (Tribunal); (10) Kusum Products Limited v. Collector of Central Excise - 1989 (44) E.L.T. 534 (Tribunal); (11) Balamurugan and Balamurali v. Collector - 1989 (44) E.L.T. 591 (Tribunal); (12) Bharath Kumari Sehgal v. Collector - 1991 (56) E.L.T. 217 (Tribunal); (13) M/s. Jayalakshmi Coelho v. Oswal Joseph - AIR 2001 SCW 1013. The Advocate also referred to the decision of the Principal Bench, Delhi in the case of M/s. Oriflame India Private Limited - 2000 (122) E.L.T. 601, pleading that according to this decision, if the main application is otherwise admissible but for a small portion of it which may relate to classification, the same can be allowed to be proceeded with. In conclusion, vide their further petition dated 27-10-2003, it has been pleaded that since the bulk of the impugned goods are cotton fabrics to which the provisions of Section 123 of the Customs Act, 1962 does not apply, and only a small portion of the goods seized on 23-5-2002 are fabrics made wholly or mainly of synthetic yarn, this would not act as a disqualification under the second proviso to Section 127B(1) of the Customs Act, 1962. During the hearing on 20-10-2003, it was also cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Apex Court has reiterated the same view in the subsequent case of Commissioner of Central Excise, Calcutta v. ASCU Limited - 2003 (151) E.L.T. 481 S.C.) that mistake apparent from record cannot be something which would have to be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been held that a decision on a debatable point of law cannot be a mistake apparent on the record. On the other hand, the applicant however, has not brought out any apparent mistake on record in the Order No. 38 of 2003 (Cus.), dated 21-8-2003 which they seek to recall as stated in their petition dated 27-10-2003. 7. The earlier Order No. 38/03 (Cus.), dated 21-8-2003 apart from concluding that no application can be made in relation to goods to which Section 123 applies, had also observed specifically that As earlier stated most of the goods covered in the SCN are the ones to which Section 123 applies . The applicant seems to be latching on to this sentence to dispute whether Section 123 applies to most of the goods or not. The conclusion of the Bench on whether Section 123 applied to most of the goods involved in the case, is ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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