(1.) IN this Writ Petition, petitioner wants the issue of a writ ofcertiorarified mandamuscalling for the records of first respondent in Order No. 83 of 1996, dated 12 -6 -1996 and quash the same and for further directing the first respondent to modify its Order No. 862 of 1995, dated 24 -11 -1995 as prayed for in the petitioner's rectification Application No. E/ROM/256/96 MAS in E/563/91.
(2.) IN the affidavit filed in support of the writ petition, it is alleged that 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 petitioner and also as to why penalty should not be imposed. A detailed reply was given along with various annexures. Second respondent who decided the adjudication, confirmed the show cause and also imposed penalty. The matter was taken before the first respondent an Appeal. Various grounds were taken for setting aside the order passed by the second respondent. Several paper books containing copies of documents are also filed. The questions that arose in Appeal were (1) whether there was clandestine manufacture and removal of cigarettes without payment of duty during 1 -3 -1989, 23 -6 -1989, involving a duty of nearly Rs. 51 lakhs, and (2) whether there was removal of cigarettes without payment of duty under delivery challans to Messers, Suvarna Filters and Tobacco Products, involving a duty of nearly Rs. 72 lakhs. It is said that arguments were heard on various dates, and finally an order was passed on 24 -11 -1995. The Appeal was partly allowed. The first respondent found that there was no clandestine removal of cigarettes. But it was found that without payment of duty, there was double transportation, and to that extent, the finding of the second respondent was confirmed.
(3.) BY the impugned order, first respondent dismissed the same on the ground that there is no error apparent on the face of the records. Even if such a contention is accepted, first respondent found that that is not a ground for rectification. At the most, it will amount to a non -consideration of a mixed question of law and fact, which does not give jurisdiction for rectification. There is no error apparent on the face of the records, and the remedy of the petitioner is only to file a Reference Application, stating that the findings arrived at are not in consonance with the records, and relevant evidence has not been taken into consideration. The Tribunal further said :