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TMI Blog2012 (6) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit and the fact of filing of ROM and non-consideration of the same by the Tribunal has affected the appellant adversely and in no way benefitted him - non-pursuing of the ROM application and non-mentioning the fact of filing of application, cannot be said to be non-declaration of material fact or suppression and such non declaration or suppression in no way would benefit the appellant. Submission that the order passed by the Chief Commissioner was an administrative order and therefore is not appealable – Held that:- As decided in DHARAMPAL SATYAPAL LTD. Versus COMMR. OF C. EX., SHILLONG [2008 (3) TMI 86 (Tri)] since the Chief Commissioner will be exercising the power of the Commissioner while adjudicating the matter, there would be normally no dispute about the Appellate Tribunal hearing an appeal against such an Order. Moreover, we note that Section 35B(l)(c) of the Central Excise Act, 1944 provides an appeal to this Tribunal against an Order passed by the Central Board of Excise and Customs, which is a higher authority than the Chief Commissioner. Rejection of the request for compounding of offense on these grounds cannot be sustained - the impugned order is set-aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable at all. It was submitted that the order passed by the Chief Commissioner was an administrative order and therefore is not appealable. Further, the Tribunal has no jurisdiction to hear the appeal in view of the provisions of Section 35B of Central Excise Act, 1944. Learned advocate for the appellants on the other hand relied upon the Tribunal decisions to submit that the Tribunal has the jurisdiction to hear the appeals against the orders passed by Chief Commissioner. Further, he also submits that as per the circular issued by the Board No. 29/2009-Cus dated 15.10.2009, the cases where the Chief Commissioner is not inclined to accede to appellant s request for compounding, it has to be rejected duly informing the grounds and after following the principles of natural justice. He submits that the instructions issued by the Board in the above circular would clearly show that that the Chief Commissioner exercises quasi judicial authority when he passes the order and therefore, it cannot be called an administrative decision. 4. According to Section 35B of Central Excise Act, 1944, any person aggrieved by any of the orders passed/decisions may appeal to the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered as mere administrative decision and further, in view of the decisions of the Tribunal cited above taking a view that appeal lies to the Tribunal against the decision or order passed by the Chief Commissioner, the preliminary objection raised by the learned AR is rejected. 7. Coming to the merits of the case of the appellant, the learned Chief Commissioner has taken a view that the appellant did not make true submissions at the time of filing of application for compounding of offence. 8. The first finding of the Chief Commissioner as recorded is that there were contradictions in the submissions made by the appellant regarding his role in the offence. In his statement dated 26.4.1989, the appellant had accepted his role in the offence and had stated that he had the knowledge about the sale of unaccounted goods, clearance of kitchen sinks in the guise of laboratory sinks, cleared higher quality sinks as lower quality etc. In his defense reply to the show cause notice he had denied the charges leveled against him stating that the statement was recorded under duress and coercion. However, in the application for compounding of offence he has stated that he was acting solely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Reliance was placed on several decisions to submit that such contradictions or omissions should not come in the way of considering the application. 13. In the case of Raghbir Singh vs. Municipal Board of Hardwar Union, Hardwar AIR 1956 Allahabad 324, the Hon'ble High Court of Allahabad held that what is to be seen is whether the omission of fact is material or not; the omission to mention a particular fact does not necessarily disentitle the petitioner to get a relief under article 226 unless the fact which has been omitted to be mentioned is material to the relief claimed by the applicant. 14. The Hon'ble High Court of Rajasthan in the case of Sheo Karan and Ors vs. State of Rajasthan AIR 1979 Rajasthan 58 held that if suppression of facts have no bearing on the main point in the petition, petition cannot be dismissed. 15. In the case of Manibhai Hathibhai Patel and Ors vs. C.W.E. Arbuthnot AIR (34) 1947 Bombay 413, the Hon'ble High Court of Bombay also took the view that suppression or non submission of material facts due to no intention on the part of the petitioners to mislead or deceive the Court will not result in dismissal of application. 16. In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjective of filing of ROM is to point out errors apparent on the face of the order and seek rectification. In such a situation, non-pursuing of the ROM application and non mentioning the fact of filing of application, cannot be said to be non declaration of material fact or suppression and such non declaration or suppression in no way would benefit the appellant. In fact, it has to be noted that appellant has not written that what was the mistake he pointed out in the application, what was the relief he sought and how it would have impacted his penalty or prosecution. Therefore, it cannot be said that mere failure to mention the fact of filing ROM is very material for compounding of the offences. 20. As regards payment of penalty under protest, it has no value in the eyes of the statute since the order of the Tribunal has attained finality and the appellant has officially gone on record to submit that he did not pursue ROM at all nor did he file appeal. 21. The above discussion would lead to the conclusion that the rejection of the request for compounding of offence on these grounds cannot be sustained. Accordingly, the impugned order is set-aside and the matter is remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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