TMI Blog2009 (5) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; asst. yr. 1995-96, ITA No. 169/Pn/1998; asst. yr. 1997-98, ITA No. 864/Pn/2002; asst. yr. 1998-99, ITA No. 865/Pn/2002; asst. yr. 1999-2000, ITA No. 961/Pn/2003 and asst. yr. 2000-01, ITA No. 960/Pn/2003. Since identical issue is involved in all these miscellaneous applications preferred by the assessee, these are being disposed of with this consolidated order. 2. The assessee has submitted in its miscellaneous applications preferred against the order of the Tribunal, pointing out that certain mistakes apparent from the record have occurred in the order of the Tribunal and has requested for rehearing of the appeals. The mistakes as pointed out by the assessee in its miscellaneous applications are reproduced hereunder: "A. The Tribunal held that 'tobacco preparation' would cover 'all those preparations and products, which are prepared using tobacco if the properties of tobacco are retained in the preparation without undergoing any metamorphosis as a result of addition of other ingredients'. The applicant was not informed which are these properties and how they are retained. There is no material on record to show that this test is fulfilled in the present case. Had it been bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quantity of tobacco. Hence by this test betel nut will have to be regarded as the dominant ingredient in Gutka preparation. Disposal of appeal by the Tribunal without putting this test to the applicant and without deciding whether 'Gutka' fulfils this test clearly discloses a mistake apparent from the record. D. The Tribunal has held that the expression 'tobacco preparations' has to be understood in contradistinction to a 'tobacco-less preparation'. Therefore, the expression tobacco preparation would cover the entire universe of products which have any quantum of tobacco in it. If the Tribunal would have put this test to the applicant it would have pointed that this may not be a proper test. E. The Tribunal referred to the decisions in Royal Hatcheries vs. State of Andhra Pradesh AIR 1994 SC 666 dealing with the interpretation to be placed on the phrase 'such as' and SIL Import USA vs. Exim Aides Silk Exporters AIR 1999 SC 1609 on the concept of 'updating legislation' without bringing them to the notice of the applicant. F. After holding that 'chewing tobacco' means something, which one neither smokes nor swallows the Tribunal has concluded that Gutka is to be regarded as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be much more intense in Gutka as quantity of betel nut is almost ten times the quantity of tobacco. (vii) It is also stated 'many States have sought to curb its immense popularity by taxing sale of Gutka heavily or by banning it outright'. The applicant submits that the Hon'ble Supreme Court of India in the case of Ghodawat Pan Masala Products Industries (P) Ltd. vs. Union of India in Civil Appeal No. 4674 of 2004 by order dt. 2nd Aug., 2004 has held the ban on Pan Masala and Gutka by the Food and Drug administration as unwarranted, illegal and bad in law. (viii) The Tribunal has also observed 'due to its often sweet taste, easy availability and cheapness, it is popular with poor children, school boys and girls who can exhibit precancerous lesions at a very early age as a result of its use'. Smokeless tobacco use is increasing rapidly in the stratum of society from which it had almost disappeared among individuals with college education who are in business and in middle and high level management positions. Pouches and sachets of smokeless tobacco are becoming more common in public places including schools and colleges as well as places of worship. It is visible even to the 'n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cco and then drawn unwarranted inferences from the same. For example, the Tribunal has observed tobacco has a very unpleasant taste and therefore it is orally consumed better when it is mixed with other ingredients and that it is neither possible nor practicable to orally consume tobacco in its purest form which can prove to be lethal and lead to serious intoxication and other health complications. That a person orally consuming tobacco in the form of processed leaves will in all likelihood, immediately vomit it out. The applicant submits that it is true that tobacco has an unpleasant taste. But it is also a fact that despite the unpleasant taste tobacco or Zarda is widely consumed orally in the form of chewing tobacco. In any event, consumption of tobacco can neither be lethal nor intoxicating. 1. A person buys Gutka for the composite taste of betel nut, Kattha, perfumes, spices, Kesar and other ingredients together with tobacco. If the consumer is only interested in consuming tobacco he would prefer chewing tobacco or Zarda which is much cheaper than Gutka instead of going on for Gutka. Gutka gets its taste from spices and to some extent from tobacco, and favour, smell/odour fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the contents of tobacco in the "Gutka" is only 6 to 7 per cent in terms of quantity and is only 1 per cent in terms of value of the product. Learned senior counsel contended that certain arguments advanced on behalf of the assessee were not dealt with in the appellate order of the Tribunal. He submitted that the Tribunal has referred to the decision of Royal Hatcheries vs. State of Andhra Pradesh AIR 1994 SC 666 and SIL Import USA vs. Exim Aides Silk Exporters AIR 1999 SC 1609, without bringing them to the notice of the assessee. Learned senior counsel submitted that the assessee has always admitted that "Gutka" has tobacco contents to the extent of 6 to 7 per cent, but considering the extent of quantity of tobacco, the value of tobacco in the 'Gutka' preparation and the base of "Gutka", it could not be said that "Gutka" is a tobacco product. Learned senior counsel contended that there is no material or basis with the Tribunal to observe that the pharmacology of nicotine and the physiological and psychological effects of nicotine are intact in the tobacco added to the other ingredients in the "Gutka" and in Pan Masala containing tobacco in the same way and in the same strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the submissions of learned counsel for the assessee. He submitted that it is a miscellaneous application filed under s. 254(2) of the Act, which do not form the jurisdiction of the Tribunal to review its own order and the jurisdiction of the Tribunal is limited to rectify only mistakes in its order, which are apparent from the record. He submitted that no mistake of fact could be pointed out by the assessee and that the Tribunal has passed a well reasoned, elaborate order deciding the issue of deduction under ss. 80-I and 80-IA in the case of the assessee. He relied on the decisions in Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) and in CIT Anr. vs. ITAT Anr. (1992) 102 CTR (Ori) 281 : (1992) 196 ITR 640 (Ori) in support of his arguments. Learned Departmental Representative submitted that the assessee has already preferred an appeal to the Hon'ble jurisdictional High Court and the Hon'ble High Court is seized of the matter and the remedy of the assessee lies in appeal before the Hon'ble High Court and not by way of filing miscellaneous application before the Tribunal. He submitted that subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its appellate order. The para 45(ii) of the order of the Tribunal is reproduced hereunder: "45(ii) The test suggested by the learned senior counsel requiring that substantial quantity of 'tobacco', either in terms of weight/quantity or value or base in the preparation, must be present in a product/preparation is relevant for judging whether a product falls under the expression 'tobacco' or not. The test whether an ingredient is a dominant one in a preparation is relevant for judging whether a preparation falls under the expression 'tobacco preparations' or not. The dominant nature of an ingredient in a preparation must be judged in the light of the fact whether the properties of that ingredient are retained and dominate the preparation without undergoing any metamorphosis as a result of the addition of other ingredients in the preparation. Tested on this principle also, Gutka falls under the expression 'tobacco preparations' for the reasons explained earlier in this order." Accordingly it cannot be said that the tests have been invented by the Tribunal and were never put across to the assessee. Regarding the general observations of the Tribunal with regard to the harmful effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal wherein these two decisions of the Supreme Court were cited by the Tribunal: Para No. 38: "The learned senior counsel, however, contends that the words 'such as' in Item No. 2 are always words of limitation. We are unable to agree with him. At p. 3129 in the second volume of 'The New Shorter Oxford English Dictionary' (1993 Edition), the meaning of the words 'such as' is given as 'for example'. In Royal Hatcheries vs. State of Andhra Pradesh AIR 1994 SC 666, it has been held at p. 668 of the said report that 'the words 'such as' indicate that what are mentioned thereafter are only illustrative and not exhaustive'. At p. 670 of the said report, it is stated: 'So far as words 'such as' are concerned, there is no dispute that they are meant to be illustrative and not exhaustive'. At p. 671 of the said report, the terms 'viz.' and 'etc.' have been interpreted thus: 'The opinion of Viscount Finlay shows that the expression 'viz.' stands for 'videlicet', which means 'to wit' or 'that is to say'. These words are generally understood as words of limitation. Regarding the meaning of the word 'etc.', it was observed that the word 'etc.,' is absolutely different from 'et alia' and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent from the record. We find that it is not the case of the assessee that the Tribunal in the case of the assessee has wrongly applied the law laid down by the Supreme Court in the decisions of the Hon'ble Supreme Court referred to above. In our considered view, perhaps if the Tribunal has wrongly applied the law laid down by the Hon'ble Supreme Court, in a given case it could be said that there is a mistake apparent from the record in the order of the Tribunal. Here in the case before us, the mere citing of the law as laid down by the Hon'ble Supreme Court in some cases, could not amount to mistake apparent from the record in the order of the Tribunal. No case has been made out by the assessee that the Hon'ble Supreme Court decisions have been wrongly applied to the case of the assessee, hence, some prejudice has been caused to either of the parties before the Tribunal. In these facts of the case, we hold that no mistake apparent from the record could be made out by the assessee in the order of the Tribunal on this issue. We consider it relevant to reproduce the decision of the Hon'ble Rajasthan High Court on this issue in the case of Raja Baldeodas Birla Santati Kosh vs. CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be said to be a mistake apparent from the record and can be rectified under s. 254(2) by the Tribunal. The decision on a debatable issue is not a mistake apparent from the record. The mistake which the Tribunal is entitled to correct, is not an error of judgment but a mistake which is apparent from the record itself. In Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd., Hon'ble apex Court held: "Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality. A patent, manifest and self-evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the record means an error which strikes one on mere looking and does not need a long drawn out process of reasoning on points on which there may be conceivably two opinions. Such error should not require any ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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