THIRD MEMBER ON REFERENCE : JUSTICE K. SREEDHARAN, PRESIDENT AND DR. S.N. BUSI, MEMBER (T) COSMOSTEELS (P) LTD. Vs. COLLECTOR OF CUSTOMS, CALCUTTA

JUDGEMENT

(1.) THE present applications have been filed by the applicants under the provisions of Section 129B(2) of the Customs Act, 1962 pointing out to different mistakes in the Tribunals Order Nos. A -48 -52/98 -NB (DB), dated 19 -11 -1998 and praying for amendment on the said order passed on the appeals filed by them. As all the applications are directed towards the same order passed in their appeals, they are being disposed of by a common order, though the mistakes pointed out by all of them are different and would be dealt in separately.

(2.) FIRST taking up the application by the main applicant M/s. Cosmosteels (P) Ltd., Shri N. Chandrasekhar, ld. Sr. Advocate pointed out that originally there was a difference of opinion between the two Members as regards the confirmation of demand of duty in respect of 98 bills of entries, which dispute was resolved by the Third Member. However in respect of 35 bills of entries both the Members concurred and confirmed the demand of duty. Drawing attention to the Order, Shri Chandrasekhar submitted that the main evidence relied upon by the Member (Judicial) as also by Member (Technical) was the invoices retired by the appellants from their banks and it was held that the said documents prove beyond doubt that there has been under valuation. However, he pointed out that these invoices which were retired from the Bank and were held to be supporting the departments case were limited to only 27 bills of entries. There were no bank retired documents in respect of the balance 8 bills of entries. As such he submitted that confirmation of demand of duty in respect of all the 35 bills of entries was an error apparent on the face of it and should be rectified. To support his argument that the demand in respect 35 bills of entries were based upon the bank endorsed invoices, he referred to para 28 of the Order of Member (Judicial) and to para 53 of the Order of Member (Technical) (now Honble Vice -President). As such he submitted that the demand of duty of Rs. 12,89,657.73 pertaining to these 8 bills of entries should be set aside by rectifying the mistake. He also argued that as the penalty of Rs. 20 lakhs was confirmed by both the Members, with the reduction of differential duty, the same should also be reduced correspondingly.

(3.) COUNTERING the arguments of the ld. Counsel Shri T.P. Kumar, ld. SDR submitted that the application for rectification of mistake is not maintainable inasmuch as the scope of such application is only restricted to the mistake which is apparent on the face of the records. The appellants cannot seek review of the Order in the garb of the rectification of mistake application. He also drew attention to the show cause notice where the allegations were of misdeclarations of the goods in respect of quantity as well as quality. As such he submitted that it was not only the value which was the issue before the Bench. Further drawing attention to the various paragraphs of the Order he argued that the decision has been arrived at by both the Members on the basis of a lot of evidence and it is not that the sole ground for confirmation of demand was the bank endorsed invoices as the case has been made out by the appellants. As such there is no such error in the Order and no rectification application lies against the same.