VINOD KUMARI DEVI Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THIS is an application for rectification of mistake filed by one Smt. Vinod Kumari Devi said to be aged 70 years and wife of Late Madan Mohan. She has signed the affidavit in Hindi language. In this application, she has not indicated that the said application/affidavit has been read out to her and she understood the contents of the same. It has also been not stated that the affidavit has been prepared at her instance. The name of the person who has prepared the affidavit has also not indicated except the affidavit indicates that she had been identified by Mr. M.B. Gabhawala, Chartered Accountant. The affidavit has been notarised and the accompanying application has not been signed on page to page. There is no signature or initial of any person on 8 pages except on the last page No. 9, which has been signed without verification. The signature is said to be of Smt. Vinod Kumari Devi. The said signature has not been attested by any person. The applicant claims to be legal heir of late Madan Mohan on whom and four others proceedings were initiated by the Original Authority for having carried illicitety 99.86 Kgs. of Silver bars valued at Rs. 7,04,000/ -. Penalties were imposed on these five persons including for absolute confiscation of 16 sliver bars. The Tribunal after a detailed hearing of the appeals noted that silver had been secreted in the two secret cavities of Maruti van in back seat and 3 secret cavities in top in which the sliver in question was concealed and brought from Varanasi to Salem by Mr. Madan Mohan Mukutwala. The Tribunal on the point of reasonable belief applied the judgment of Hon'ble Apex Court and held that there was reasonable belief for the officers to hold that the sliver in question was not licitly acquired. Thereafter, the Tribunal noted that the burden of proof shifted on the appellants to show that the seized silver was licitly purchased and not a smuggled one. The Tribunal noted that this burden of proof has not been discharged by the appellants before the Tribunal during the hearing. They relied on a voucher dated 12 -9 -1992 which was not accepted by the Tribunal. The counsel then appearing Sri Ismail had requested for remand of the matter so that they can collect evidences to show the licit origin of the goods in question. A query was raised by the Bench whether they are in possession of such documents for which the counsel fairly conceded that he does not have any documents in possession. In that view, the Tribunal held that there was no ground for remand the matter to the original authority as they have considered the evidence before coming to the conclusion. Therefore, absolute confiscation of silver bars which have very high purity was upheld. The order was passed on 7 -8 -1996 and the first appellant, who claimed to be the owner is said to have passed away on 15 -10 -1996 leaving behind his wife, the present applicant, his daughter -in -law and one old grandson as legal heirs. The applicant has not produced death certificate of the said Madan Mohan neither successor certificate from any authority under Succession Act. The affidavit does not mention that son is pre -deceased or died neither the name of the son is indicated. There is no death certificate both of Late Madan Mohan or his son. There is no successor certificate produced to show that the applicant alone is entitled to file this application. There is no affidavit on behalf of the daughter -in -law, whose name is indicated as Smt. Baby Rani widow of Late Dwaraka Das. The name of grandson has not indicated. There is no certificate issued by any Court to the applicant Smt. Vinod Kumari Devi to act as guardian on behalf of minor grandson and also to act on behalf of Dwaraka Das.

(2.) THE applicant had filed reference application before the previous Bench, which has decided the main matter. Their reference application was rejected with a specific observation that the questions raised before the Bench were questions pertaining to appreciation of facts and no question of law arise out of the appreciation of facts. The Tribunal further observed with regard to the voucher on which the goods were transported. In so far as the question of certificate is concerned, the Tribunal observed that this point was not urged before the Tribunal, when the matter was argued as could be seen from the order of the Tribunal. The Tribunal further observed that any point on which a reference is sought should have been argued before the Tribunal and a decision rendered by the Tribunal in that behalf. The Tribunal further observed that only when a matter has been argued before the Tribunal and the Tribunal applied its mind on that argument and a decision rendered in the light of that argument, a reference can be sent to the High Court and since the aspect with respect to the Assistant Commissioner making an enquiry was not argued before the Tribunal and there was no occasion for the Tribunal to enter a finding in that regard and when no such findings has been entered, the question of reference to the High Court does not arise for the simple reason that that particular point was not argued before the Tribunal and no finding was given by the Tribunal. Hence, the reference application was rejected. Having failed in their attempt to get the matter referred the same applicant claimed to be legal heir of late Madan Mohan, has moved this application in the manner already indicated above.

(3.) IN this application, as pointed out, which is of 9 pages, which has not signed by anybody, but only in the last page by the present applicant Smt. Vinod Kumari Devi in Hindi language and has not even verified; it is stated about how the transaction is said to have occurred. The aspects pertaining to evidence and other matters have been discussed. The applicant has not indicated how she has got knowledge of these matters and how she is competent to file this application without even verification of facts, without this application having been read out to her and explained. Under these circumstances, it is difficult to accept the plea that she is competent to file this application for rectification of mistake.