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TMI Blog1999 (4) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... tions), which the learned Counsel had advanced during the course of hearing of the case. Similarly, the Departmental Side has virtually filed a counter complete with citations in all their details. 3. It is, however, well-known that this Tribunal does not have any power of review of its own Order and therefore, this type of re-hearing the whole matter in respect of all the main arguments is beyond our jurisdiction; But both the sides appear to have lost sight of this legal position. 4. It may also be further stated that a decision consciously taken after evaluation of evidence cannot be called as an error apparent on the face of records. If the applicants had any reason to feel aggrieved with the Judgment or Order of the Tribunal, it was open to them to seek such remedies as were available in law, but it was not open to anybody to get the whole case reviewed and reconsidered in the garb of a R.O.M. application. An error apparent in the face of record is one which straightaway hits the eye, does not require elaborate arguments or pointing out of various citations, quotations all over again. 5. In view of the above position, it is not necessary to say anything furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vice President 9. [Order per : Archana Wadhwa, Member (J)]. - I have gone through the Order proposed by the Hon'ble Vice President on the applicants application for rectification of mistake in the Tribunal's Order No. A-729-731 dated 24-7-1998. My views in the matter are different and as such a separate Order is being recorded. 10. The applicants' grievance is that in the Order passed by the Tribunal, strong reliance has been placed on the test report of National Test House, Alipore, Calcutta (in short N.T.H.) and the test certificate of Central Revenue Control Laboratory (in short C.R.C.L.). Paragraphs 5.3, 5.4, 5.5, 5.7, 5.9, 5.10 and 5.12 of the Order refer to and rely upon the National Test House, Alipore's test report. It is the appellants' contention that the said reports of N.T.H. and C.R.C.L. did not relate to their goods and as such reliance on the same was a mistake apparent from the records. Shri S.K. Bagaria, ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical literature. As such it cannot be said that the test reports have been made the sole basis for arriving at the conclusion by the Tribunal. As regards the respondent's contention that the test reports and C.R.C.L.'s letter do not belong to them and were never disclosed to them at any stage before the Tribunal, he submitted that the same can be allowed admission by way of additional evidence which is within the inherent jurisdiction of the Tribunal, irrespective of the fact that no application was filed by the Revenue in that record. In support of his submissions he also referred to the various case laws. 13. After going through the final Order No. A-729-731 dt. 24-7-1998 I find that though the literature issued by the respondent Company and the H.C.L.'s explanatory notes have also been considered while arriving at the final decision. Nevertheless the test reports by the National Test House, Alipore as also letter dt. 16-12-1991 issued by C.R.C.L. have been made the strong basis for arriving at the conclusion. In all the paragraphs pointed out by the ld. Advocate for the applicant, reference and reliance has been strongly made on these two documents. In paragraph 5.5 it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T. v. Mithalal Ashoke Kumar reported in 1986 (158) ITR 755. To the similar effect is the Allahabad High Court's judgment in the case of C.I.R. v. Keshob Food Mart reported in 1993 (199) ITR 771. The department's contention that apart from the test report and C.R.C.L.'s letter, the other factors have also been taken into consideration for arriving at the conclusion is correct, but the question arises as to whether the reliance on these two documents contested by the respondents as not belonging to them was an error apparent on the record or not. I am not on the correctness or legality of the Order passed by the Tribunal. Even in the absence of these test reports, the Tribunal might have come to the same conclusion, but in my views reliance on the reports is an error apparent on the record and needs rectification. 15. As regards the applicants' contention in respect of their literature and the Tribunal's findings thereon I do not agree with them that there is a mistake on part of the Tribunal. The applicants in the garb of rectification of mistake cannot seek review of the Order. Specific observations have been made by the Tribunal as regards the technical literature of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or articles thereof falling under tariff Heading 44.09. 121. It is submitted by the ld. Advocate Shri S.K. Bagaria for the applicant that the said report of NTH, as also of Central Revenues Control Laboratory (CRCL) were never relied upon in the Show cause notice, nor were they referred to in the impugned order passed by the Collector of Central Excise. These two documents were, for the first time, referred to in the C.B.E. & C.'s. Order, dated 24-9-1993. It has been submitted that both these documents are dated prior to the date of Show cause notice. There was, therefore, no reason for the Revenue not to rely upon the said documents in the show cause notice. Those two documents being not part of the record before the Collector could not be relied upon by the Board in passing its order under Section 35E of the C.E. Act 1944. These documents, if at all relevant, could be brought on record by Revenue by a suitable application for additional evidence before the Tribunal. This point was particularly taken by the applicants as part of their submission against Revenue's Appeal. 22. It has also been submitted by Shri S.K. Bagaria that a bare perusal of the said report dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. He relies for this proposition on the following two judgments of the Apex Court. (i) 26 ITR 736 (Dhiraj Lal Girdhari Lal v. C.I.T) (ii) 228 ITR 349 (CIT v. Daulat Ram Rawatmull) 28. I have carefully considered the pleas advanced from both sides. From a bare reading of the Tribunal's final order, dated 24-7-1998, it is apparent that Tribunal has relied upon various materials in arriving at its finding that the product manufactured by the applicant herein was 'densified wood' falling under tariff Heading 44.09 of the C.E. Tariff. Chiefly, this finding is based on applicant's own literature as well as the NTH report. 29. It, however, remains a fact that the applicant had strongly resisted against taking this evidence on record, as is apparent from the 'synopsis of submissions' made by them against Revenue's appeal. It was, therefore, incumbent upon the Tribunal to read NTH report in evidence only after admitting the same on record and after discarding the ground of resistence raised by the applicants at the time of submissions against Revenue's appeal. That having not been done, relying on NTH's report was an appa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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