COMMISSIONER OF CUSTOMS Vs. JYOTI INDUSTRIES

JUDGEMENT

(1.) THIS is an application filed by the Revenue for rectification of mistake against Final Order No. A/1001/99 -NB dated 29 -10 -99 on the ground that mistake has crept in.

(2.) THE Commissioner has decided the issue in favour of the assessee in respect of one Bill of Entry against which the Department has filed an appeal. According to the Departmental Representative tine declaration /certificate issued by the Commissioner covers the disputed amount pending on the date of filing declaration by the Party and the question of acceptance of amount relating to the other show cause notice which was not disputed on the relevant date does not arise. Accordingly, he requested that appeal filed by the Department is to be recalled.

(3.) ON the other hand, Shri J.P. Kaushik submitted that no mistake has crept in the order. The party has filed declaration covering both the Bills of Entry as can be seen from declaration (page 3 & 4 of the paper book) and in view of the order issued by the Commissioner dated 6 -11 -98 in which declaration was accepted under Kar Vivad Samadhan Scheme. Since the declaration covers both the show cause notices, the impugned order is one and the same, it cannot be said that mistake has crept in with reference to the declaration filed by the assessee. He also submitted that to rectify the mistake, it must be apparent form record. The way it was argued by the DR cannot be said to be clerical mistake or apparent mistake which can be rectified. In this context, he also drew our attention to Section 129B(2) which is as under: