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TMI Blog1995 (10) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... of disposal of the goods has been brought on record now in the subject Application. 2. Learned Consultant has urged for the Applicants that the Tribunal should rectify its Order suitably in view of the apparent mistake on record, or alternatively grant compensation taking the market value of the goods at Rs. 2.80 lakhs appraised by the Revenue itself at the time of seizure. 3. Learned SDR Shri D.K. Saha submits that there was no mistake of fact on record. Firstly, it has been brought to light now. Secondly, the fact of disposal of goods occurred subsequent to passing of Adjudication Order. Tribunal has no power to grant compensation as held in Golden Hind Shipping (I) Pvt. Ltd. by Orissa High Court [1993 (65) E.L.T. 613]. 4.&em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of other party shall not be made under this sub-section, unless Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard." 6. The power to amend its order, it is clear, lies with the Tribunal, if a "mistake apparent from the record" has crept in its order. What is the scope of the expression "mistake apparent from the record". This expression uses three words which are significant : (a) `mistake', `apparent' and `record'. It is clear from the facts and circumstances of this case and the findings of the Tribunal, as set out in the Tribunal's final order dated 14-2-1995 that it is the assumption of the Tribunal that the `goods' are still available for redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SDR has urged that the fact of disposal of goods was not on record before the Tribunal and in any case is a fact which occurred subsequent to the passing of the impugned order under Appeal before the Tribunal. Therefore, Tribunal is debarred from considering the fact now. Such a plea, in our view, is without basis. A fact which materially affects the disposal of the Appeal, even though subsequently occurring, is to be taken into account by an appellate authority. In this connection, Supreme Court's judgment in Mithilesh Kumar v. Prem Behari Khare [1989 (40) E.L.T. 257 (paras 20 and 21)] is appropriate to refer to. Learned SDR's plea also gets rebutted by two judgments of the Tribunal also, namely :- (1) Smt. Prativa Rani Samantha v. C.C.E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciated by Court's which gives power to the Tribunal to rectify the mistake of the type found in the present case. Punjab High Court in Mangat Ram Kuthiala v. C.I.T. [38 (ITR 1 at page 11)] has observed as follows as reported in page-485 in Prativa Rani's case (supra) :- "In the said judgment, their Lordships had observed - "Now it is a settled rule that a judicial tribunal can recall and quash its own order in exceptional and rare cases when it is shown that it was obtained by fraud or by palpable mistake or was made in utter ignorance of a statutory provisions and the like." Again, "If the proceedings are in the nature of judicial proceedings, then irrespective of the class of the Tribunal, the rule will apply and if an order has been ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. We do not know whether Rs. 1.12 lakhs is the market value of the goods including the duty element on the goods or the duty has been charged separately from purchaser of the goods in auction. If so, how much? In any case, value of the goods seized has undergone a change and, therefore, a suitable change in the level of fine and penalty is called for. 13. Before a final rectification is carried out in Tribunal's order, we would like to have the above information from the Revenue. 14. As regards the alternative prayer of the Applicants that they should be compensated keeping in view the Revenue's own valuation at Rs. 2.8 lakhs and they should be reimbursed the remaining sum after deduction of fine and penalty is not acceptable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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