TMI Blog2006 (9) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... issued with these directions, without resolving this conflict in views, thus there is an error apparent from the face of records. The ld. Consultant for the Revenue fairly admitted that the following words need not have been added by the ld. Member (T) in the order prepared that it becomes payable only when the goods are redeemed and it is urged before us that these words may be considered redundant be overlooked. Since the order is final and unless such order is rectified by this Tribunal, there can be no change the words phrases as they appear in the order of the Hon ble Member (T), they cannot be ignored, found redundant overlooked or altered. Revenue has urged that it is a well settled principle of law that the mistake, be one which is apparent on the face of the records and not one which is required to be established by a long drawn process of reasoning, on which there may be more than one opinion/view. They relied upon certain judgments of the Hon ble Supreme court and Tribunal to support their view. However, we find that a mistake, apparent on the face of records, is obvious, when one reads para 8 and 9 of the Tribunal s order dated 25-11-05 pertaining to imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at Rs. 58,58,6961- in pant 19 the Hon ble Supreme Court has held as under : ..As the consumption and utilization of capital goods valued at Rs. 58,58,696/- has not been properly accounted for and these goods were found short while working out the details, the duty foregone at the time of clearance of the goods is clearly leviable. Confirmation of demand by the Commissioner as was done is in order . As far as the installed motors, carbon brushes and hand pieces are concerned in para 22 the Hon ble Supreme Court held as under : The demand as confirmed by the Commissioner stands revived . 3. The ld. Counsel for the Appellants therefore contended that though the ld. Commissioner s order was for confirmation of duty, penalty under Section 114A, imposition of Redemption fine and penalty on the Appellants under Section 112(a), the Hon ble Supreme Court in these paras referred above has specifically categorically confirmed, only the duty, there being no reference or discussion regarding confirmation of fine or penalty under Section 114A or penalty under Section 112(a) of the said Act. However, the ld. Consultant for the Revenue read referred to para 32 of the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whether while dealing with the case of the Appellants there is any finding regarding imposition of penalty and fine by the Hon ble Supreme Court in paras 13 to 22, he was not able to show any such recording/findings but reiterates para 32 of the Hon ble Supreme Court order. The Tribunal in the case of Bombay Hospital Trust v. CC, Sahar, Bombay reported in 2005 (188) E.L.T. 374 (Tri.-L.B.) has held that duty is payable irrespective of the redemption under Section 125(2) of the said Act nowhere says that if confiscated goods are not redeemed duty demand if otherwise payable gets extinguished. This view larger Bench judgment is upheld by Hon ble Bombay High Court recently. Being bound by these decisions in the present case therefore paras 13 to 21 of the Hon ble Supreme Court which deal, only with duty and duty, fine and penalty are thus independent of each other. 5. In this connection we rely upon the Hon ble Supreme Court judgment in the case of Mohammad Ali Khan and Others v. Commissioner of Wealth Tax, New Delhi reported in (1997) 3 SCC 511 wherein para 6 of the said judgment the Hon ble Supreme Court has observed as under : It is a cardinal principle of construction tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Stars and B.V. Jewels for re-determination of shortages if any, as such an interpretation would be absurd in view of the Hon ble Supreme Court, in paras 13 to 22, clearly dealt with the issue of liabilities on the present Appellants before us. 7. The Ld. counsel for the Appellants in the alternative, without prejudice to their contention, pleaded that no penalty or fine is contemplated in paras 13 to 22 if the Hon ble Supreme Courts judgment also submits that in paras 15 and 17 there is a clear mention of confirmation of duty forgone, whereas in paras 19 and 22 the judgment the Hon ble Supreme Court has used the words confirmation of demand as was, is the order i.e. the demand as confirmed by the Commissioner stands revived and therefore one can give a meaning to these paras 19 and 22 that regarding Capital goods valued at Rs. 58,58,696/- and the installed motors, brushes and hand pieces which were found in original packings, the Hon ble Supreme Court has held up the demands as confirmed by the Commissioner to the extent of duty leviable on Capital goods valued at Rs. 58,58,696/- and motors, brushes and hand pieces and also an equal penalty. 8. The Ld. counsel for the Appella ..... 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