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TMI Blog1997 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner is engaged in the manufacture of cigarettes and has its factory at Salem. The goods are cleared from the factory of the petitioner on payment of excise duty. Until 1989, petitioner's factory was under the physical control of the Excise Department and the goods were cleared from the factory after verification of the gate passes and other documents by the Central Excise Officer who is in charge of the petitioner's factory. While so, on 24-6-1989, 28-6-1989 and 15-7-1989, Excise Officers visited the petitioner's factory and seized various documents and records from the petitioner's factory. A show cause notice followed, asking the petitioner to explain why a total duty of Rs. 1,23,45,897.65 P. should not be demanded from the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verse inference. It was also alleged in the rectification petition that the important point argued was regarding first visit by the Officers in connection with the case on 24-6-1989. On that occasion, delivery challans and invoices were neither noticed nor seized at that time, and this was done only during the second visit. It is said that except for the delivery challans and invoices, there is no material to corroborate the transportation. Failure on the part of the Excise Department to make enquiries from Suvarna Filter or from Golden Tobacco as to whether both had made payments and both had received the consignment of cigarettes was fatal to the Department's case. According to the petitioner, these constitute an `error apparent on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court under Article 226 of the Constitution of India. In the impugned order of the first respondent, paragraph 15 deals with the question whether there was double transport of the goods and whether duty was paid. In paragraph 15, first respondent has said thus : "....One set of cigarettes being transported under GP 1s to M/s. G.T.C. Ltd. and another set of cigarettes being transported under the cover of delivery challans to M/s. Savarna Filters and Tobacco Products. .. .." Thereafter, first respondent took into consideration the submission made on behalf of the petitioner about the trade practice. After rejecting the contention of the petitioner, first respondent again said thus : "....On examination of the letter written by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was abnormal shortage of tobacco for the period, but subsequent to the issue of the challans. But the fact remains that abnormal wastages were being claimed not only in respect of tobacco but also in respect of shells and slides. The second reason is that the shells and slides which are important packing materials were either non-accounted for or wastages of very high order were being claimed on the shells and slides. The third reason is that the delivery challans normally cover actual transportation of goods. HAVING REGARD TO THE ABOVE DISCUSSION, WE HOLD THAT DUTY SHALL BE PAYABLE ON THE CIGARETTES WHICH WERE TRANSPORTED UNDER THESE DELIVERY CHALLANS. .. ..." [Emphasis supplied] 7.Learned Counsel for writ petitioner was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably be two opinions." 9.In 1980 Tax L.R. 474 (M/s. Jainarain Jeevraj v. I.T. Commissioner, Jaipur), a Division Bench of the Rajasthan High Court (in paragraph 7 of the judgment) held thus : "...It appears that the assessee only wants to re-argue the case and take a further chance. This is not within the scope of an application for rectification." 10.In the decision reported in 1990 (2) KLT 585 (Rajamoni Amma v. Dy. Commissioner) it was also a case under Section 154(1) of the Income-tax Act, 1961. The Kerala High Court held thus : "To say that a mistake is apparent from the record, the same mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be in his favour), the Tribunal has not considered material evidence on record available before it. Learned Counsel relied on the decision reported in 1965 ITR 634 (Income Tax Officer, A-ward, Dehra Dun and Another v. Income-Tax Appellate Tribunal, A Bench, Delhi). On going by the facts of that case, I find that the judgment of the Tribunal was vitiated since it did not consider a material fact at the time of allowing the order or judgment, and which fact was duly brought to its notice by the assessee. That means, evidence was available before it, but the same was omitted to be considered. Another decision cited by learned Counsel is reported in 1986 ITR 755 (Commissioner of Income-Tax v. Mithalal Ashok Kumar). In that case, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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