TMI Blog2004 (3) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... : (1) In para 7(a) of the impugned order the Tribunal has observed that as already noted, this is a highly technical matter . After recording such an authoritative finding the order proceeds to record certain findings on the merits of the case in subsequent paragraphs which appears are self-contradictory. (2) At para 7(b) a specific finding has been recorded that the goods under reference are not computer software. However, this question did not arise for consideration as the adjudicating authority has already recorded a finding in favour of the applicant by recording that the goods under reference are computer software simplicitor. There is no appeal by the department on this aspect. In the circumstances there is a mistake apparent on the face of the record. (3) At para 7(c) certain findings have been recorded on the basis of what is contained in the Annexure to the show cause notice. It is submitted that the noticee is required to meet the allegations contained in the notice and not what is alleged to be contained in the Annexures. In the circumstances, there is a mistake apparent on the face of the record. (4) Para 7(d). The applicant contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal . 5. It is clear that what the Section envisages that the Tribunal may rectify the mistake apparent on record and not the decision reached by it in appreciation of the evidence on record. 6. We have also perused various case laws on the subject and some of which are as under : (1) In the case of Dinkar Khindria Dinesh Khindria v. CC, New Delhi the Larger Bench of the Tribunal presided over by the Hon ble President, Justice K. Sreedharan, reported in [2000 (118) E.L.T. 77 (T-LB) = 2000 (38) RLT 442 (CEGAT - LB)], it was held that Statute does not empower CEGAT to recall and review an order validly passed by CEGAT. A decision on a debatable point of law or fact is not a mistake apparent from records. - ROM Application lies only for patent mistake and order already passed in respect of one noticee not to be recalled and reheard along with appeal of other co-noticees, though all appeals had arisen from same order in-original. This judgment had relied upon a large number of judgments including that of the Hon ble Supreme Court. (2) In the case of Quality Exports Ors v. CCE, Meerut reported in [2002 (150) E.L.T. 1076 (T) = 2000 (39) RLT 85], it was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the adjudicating authority had to be guided by expert opinion and expert opinion was therefore sought for from Shri V.V. Shastri, Head of the Computer Centre, IIT, Chennai which has been relied upon in the impugned order. Though he has adverted to the same in the impugned order and quoted certain portions of the same in the order, a copy of the report was not made available to the appellants and the report was read over to the opposite side during the personal hearing. The Tribunal therefore, held that this amounted to violations of principles of natural justice. In fact that the appellant (applicant) himself in the grounds of appeal made a grievance of not furnishing copy of the expert opinion to them. This grievance of the applicant was correctly addressed by the Tribunal and it was for that reason with a view to giving a chance to contest the expert opinion that the Tribunal has remanded this point for reconsideration with a direction that the expert opinion shall be taken into consideration by the adjudicating authority. Therefore, it is not understandable as to how it can be said that there is mistake apparent on the face of record in the finding arrived at by the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice. The appellant has also replied to the show cause notice without questioning the Annexures. It is not understandable as to how the applicant can now turn around and say that they are not required to meet allegations in the Annexure to the show cause notice. In any event it is not understandable as to how it can be said that there is a mistake apparent on the face of record in the order of the Tribunal. Point No. 4. The reason for remanding the matter as to whether concessional rate of duty of 50% in terms of Notification No. 2/95 dated 4-1-95 can be extended to the goods has been well explained in the order of the Tribunal vide para 7(d). The Tribunal found that the case law cited in the matter of Ginni International Ltd. v. CCE reported in 2002 (139) E.L.T. 172 was not available before the lower authority when the impugned order came to be passed. It was in this circumstance that this aspect of the matter has been remanded to the lower authority to consider grant of benefit if any in view of the decision in the cited case. When the matter has been remanded for reconsideration in appreciation of the evidence on record and the Notification and the case law cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that penalty under both the provisions has to be apportioned and in the present case the lower authority has apportioned penalty under both the provisions. Further, quantum of penalty will also depend on the quantum of duty ultimately adjudged in the de novo adjudication. While remanding, it was also held that the appellants are at liberty to cite authorities against imposition of penalties under both the provisions. We are not able to understand as to how ROM lies against such finding arrived at by the Tribunal. Point No. 8. With regard to Confiscation of Plant and Machinery, it was found by the Tribunal that no reason was spelt out nor was there any finding given by the lower authority that the offence has been committed repeatedly. It was for this reason, that this aspect of the matter was remanded with a direction to re-examine the issue. 8. In view of above, we hold that there is no mistake apparent on the face of the record of the Tribunal and the present ROM application has been moved against a decision reached by the Tribunal in appreciation of evidence. It is well settled, as is clear from the various case laws cited above, that ROM application lies only against mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation after giving copy of the expert opinion given by the IIT to the appellants. The appellants have also relied upon similar expert opinion given by Dr. R Sethuraman, Prof. and Head of the Department of Hindustan College of Engineering. This expert opinion shall also be taken into consideration by the lower authority in the de novo proceedings . 10. From the above paragraph, it is very clear that Hon ble Member (Technical) has not applied his mind on the aspect particularly to technical nature in view of the fact the copy of the report was not furnished to the appellants and the other evidences has not been considered. There is a clear finding of violation of principles of natural justice. In the circumstances it is inappropriate to hold as in para 7(b) in the last line, the following findings : The items cleared by the appellants are not computer software as the items in question cannot be manipulated or interfered or interacted. 11. The submission of the appellant is that this observation and findings is fatal to the remand proceedings as it will foreclose them to contest the case on merits in terms of the direction given in para 7(b). It is also their contention that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its, which will have the effect of making the remand an exercise in futility. 16. The learned Member (Technical) is of the opinion that an application made on the above ground does not come within the scope of rectifying apparent mistake . He has relied on several decisions [Dinkar Khindria Dinesh Khindria v. CC, New Delhi, [2000 (118) E.L.T. 77 (T) = 2000 (38) RLT 442 (LB)] and Quality Exports Ors. v. CCE, Meerut, [2002 (150) E.L.T. 1076 (T) = 2000 (39) RLT 85 etc.] As against this, learned Member (Judicial) has expressed the view that the finding in para 7(b) of the subject order (on merits) should not have been recorded and, that mistake is required to be corrected by amendment of the original order. 17. During the hearing of the case, learned Counsel for the appellant has relied on the judgment of the Hon ble Supreme Court in the case of Dimple Overseas v. Collector of Customs, Kandla - 1995 (80) E.L.T. 10 (S.C.) in support of the application and has submitted that the present case is identical to the case decided by the Apex Court. 18. Learned SDR has contended that the present application is beyond the scope of Section 129B(2). It is the SDR s contention that a perus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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