9911796707
TMI Blog1995 (4) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... n an obvious error of record which has vitiated the ultimate conclusion and as such is not sustainable in law. 2.During the period 20-3-1990 to 16-9-1990 admittedly duty is leviable on manufacture of limestone in terms of Sec. 2(f) of the Central Excises Salt Act, 1944 read with Note 2 of Chapter 25 of the Central Excise Tariff Act. The competent authority issued notice to petitioner No. 1 - company alleging that the petitioner has manufactured limestone during the aforesaid period without obtaining Central Excise Licence and utilised the same in contravention of the provisions of the Central Excise Rules, 1944, and evaded payment of Central Excise Duty and therefore, Central Excise Duty is recoverable under Rule 9(2) of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority being based upon an obvious error of record and total non-application of mind to the contentions raised by the petitioner in its show cause, the said conclusion cannot be sustained in law. He also contends that even though the order is appealable but since the authority has committed a patent error which does not require any elaborate argument to be found out, it will be meet and proper for this court to interfere with the same. 3.On behalf of the opposite parties a counter affidavit has been filed stating therein that against the said adjudication order, an appeal being maintainable this court should not interfere with the same in exercise of its extraordinary jurisdiction. The further stand taken is that in view of the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion of the Tribunal is based upon consideration of inadmissible evidence or the Tribunal fails to admit admissible evidence or the finding on a question cannot be said to be the Finding of a reasonable man on the materials on record or the finding is based upon no evidence. Similarly, if the Tribunal bases its conclusion on an obvious error of record with regard to a plea whether taken or not taken by the aggrieved party, then also it would be a case of patent error on the face of the order. Further, if a Tribunal records a conclusion which on the face of it appears to the High Court to be the product of total non-application of mind, then also it can be said to be a case of patent error on the face of the order and can be interfered wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ of certiorari by this Court. Further, the positive assertion of the petitioner not having been taken into account while recording the conclusion clearly indicates that non-application of mind by the adjudicating authority and an order which is the outcome of non-application of mind cannot be sustained in law. In the aforesaid premises, the conclusion of the Additional Collector that the petitioner has crushed limestone in its factory and thereby incurred the liability of payment of Central Excise Duty cannot be sustained and is accordingly quashed. 6.Coming to the second question on which the learned Senior Standing Counsel for the Union of India laid great emphasis, we have no dispute with the proposition that ordinarily the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patent error, as discussed earlier, the order cannot be sustained. In these circumstances, it would neither be in the interest of the revenue nor it is equitable to refuse the relief on the ground of availability of an alternative remedy. In the facts and circumstances of the present case, in our considered opinion, the argument of the learned Senior Standing Counsel for the Union Government that supervisory jurisdiction of this court should not be invoked on account of existence of an alternative remedy of appeal under the statute, therefore, cannot be accepted. 7.In the premises, aforesaid, the impugned order of the adjudicating authority under Annexure-I is quashed and the matter is remitted back to the Additional Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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