ORION CONMERX PVT. LTD. Vs. COMMISSIONER OF CUS.

JUDGEMENT

(1.) THIS is an application filed by M/s. Orion Conmerx (P) Ltd. for rectification of mistake in final order No. A/903/2002 -NB(SM), dated 24 -7 -2002. Shri R. Pal Singh, learned Consultant, submitted that the issue involved in the appeal filed by the applicant was whether the goods manufactured by them were eligible to exemption from duty under notification; that as such the Bench of Single Member did not have jurisdiction to decide the issue involved; that it is settled by the Supreme Court in a number of judgments that lack of jurisdiction goes into the root of the problem and it can be raised at any stage of proceedings. He relied upon a number of decisions including the decision in the case of Suresh Kumar Bhikam Chand Jain v. Pandey Ajay Bhushan, (1998) 1 SCC 205. He mentioned that the second mistake which has crept into the final order relates to the confirmation of penalty imposed, on the applicants since there was no proposal in the show cause notice for imposition of penalty nor was there any wilful misstatement or suppression of facts. Finally he mentioned that there is no condition in the exemption notification to the effect that the export should take place within 6 months from the date of import of raw material duty free; that the execution of bond undertaking the export within 6 months was itself an extra legal requirement insisted on by the Customs authorities, and therefore, any violation of terms of bond did not effect the clearance at nil rate of duty under the notification.

(2.) OPPOSING the prayer Shri S. Bhatnagar, learned D.R., submitted that the show cause notice was issued to the applicants for recovery of Customs duty for failure to submit re -export documents; that as such the issue involved was not regarding availability of notification but the issue involved was whether the export requirement has been fulfilled by them or not; that further, the applicants once having been acquiesced to the jurisdiction of the Single Member now cannot claim that there was an error apparent on the face of the record as they had not raised this plea at the time of hearing of their matter. He, further, submitted that the applicants at the time of import has executed a bond giving a clear undertaking that in the event of non -export of goods they would pay the duty of Customs; that accordingly the duty was demanded from them in terms of bond which was executed by them for the purpose of availing the benefit of the notification; that the goods were allowed to be imported free of duty subject to fulfilment of export obligation.

(3.) I have considered the submissions of both the sides. There is no force in the submissions of the learned Consultant that a mistake is apparent on record as the Bench of Single Member has decided a matter involving exemption notification. This point was never raised before by the applicants when the matter was heard. As the issue was not raised it was not considered by the Bench, and therefore, it cannot be called a mistake apparent on the face of the records. Further, a perusal of the appeal memo reveals that the applicants themselves have mentioned that the appeal does not involve any question having a relation to the rate of duty. I also do not find that there is any mistake in not accepting their submission that exemption notification did not contain any condition of exporting the goods within 6 months from the date of import. Rectification of mistake is not an appeal in disguise and as held by the Larger Bench of the Tribunal in the case of Diriker Khindriya v. C.C., New Delhi, a decision on a debatable point of law or facts is not a mistake apparent from the record and the debatable issue cannot be the subject of an Order of rectification. Rectification of mistake does not envisage the rectification of an alleged error of judgment. However, I agree with the learned Consultant that a mistake had crept in the final order in confirming the imposition of penalty in absence of any proposal to impose penalty in the show cause notice. The Bench had noted the submission of the learned Consultant in Para 1 of the impugned Order that there was no proposal in the show cause notice to impose any penalty under Section 114A of the Customs Act. To this extent there is an error apparent on the face of the records. In view of this the penalty of Rs. 10,000/ - imposed on the applicant is set aside and the Final Order No. A/903/2002, dated 24 -7 -2002 is modified to this extent. The ROM application is also allowed partly.