9911796707
TMI Blog2011 (6) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... also filed rejoinder on 7-6-11. 1.2 An application for ROM dt. 1-6-10 was received on 8-6-2010 in the Registry. The said ROM was filed by Shri Zaki Ishrati. It was stated in the said application that he Tribunal's order was received "this morning" and that "the petitioners find that this final order rectification since it suffer from several mistakes need as apparent on the face of records." It categorized the mistakes under paragraphs titled A, B, C and D. In paragraph D, five points were mentioned as material facts mentioned in the appeal memo and argued at the time of hearing but not considered by the Tribunal. It also contained certain oral observations attributed to the Tribunal which are as follows : "While the order was being dictated in the open court, the petitioners' Counsel did point out the above deficiencies, but the Hon'ble Member said that this would itself be a good ground in support of the Petitioner's case before the High Court, when he goes in appeal against the Tribunal's order." 1.3 On 14-6-10 "a revised" application for ROM was received in the Tribunal superseding the earlier ROM petition. The forwarding letter reads as under : "I had sent the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the table in the guest house. This is apart from the facts as contained at Sr. No. 2, 4 & 5 under Heading 'B' above. This is also factually wrong that the receipt No. 170 was produced on 1-12-1994. In fact this was seized in the raid itself and was also confronted before Sh. Faiyaz Ahmed during his statement recorded on the next date of the raid. (7) In any case the burden of proving the licit nature about the foreign origin of the seized gold was duly discharged by the applicant in view of the material facts/evidences cited above under Headings 'B' & 'C', which went undiscussed and non-considered in the final order by the Tribunal which is the last fact finding authority under the Customs Act. 2.1 I have carefully considered the submissions. The application for rectification of mistake alleges wholesale mistakes in the final order of the Tribunal. It lists out a record number of 53 grounds as having not been considered. 2.2 Are there so many issues warranting taking of such large number of grounds in the appeal memoranda? Does it also warrant introduction of documents and grounds before the Tribunal for the first time, when the same were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived on 14-6-10. 3.3 The application proceeds on the assumption that whatever points/grounds taken in the grounds of appeal are also taken before the Tribunal during argument. It is common knowledge that the many of the grounds taken in appeal memorandum are not pressed by the learned advocate during the arguments. In the present case, the applicant filed a miscellaneous application No. 784/08 on 27-10-08 seeking to introduce additional documents and grounds which were disposed of by the order dated 27-3-09 of the Tribunal holding - "the acceptance of the additional documents and additional grounds would be considered at the time of final hearing." The appeal was ordered to be listed on 15-5-09. The matter came on several dates thereafter. The synopsis presented for the purpose of argument on 18-12-09 and on 28-1-2010 has drastically reduced the number of "Legal Propositions with case Laws" for argument. It contained only 11 points. In other words, intention is clear that all the grounds taken in appeal memoranda were not meant to be pressed during the hearing. Perhaps, it is a case of communication gap between the applicants and its counsel! 3.4 The application also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments and submissions by the authorities below. The applicant has attempted introducing new documents and new grounds at every stage. The reasons for not accepting the version of the applicants and upholding the findings of the Commissioner (Appeals) have been given in detail in the final order. 4.1 Submission has been made in the ROM application that the original authority has not invoked Section 123 of the Customs Act while ordering confiscation of the gold even though show cause notice has invoked Section 123. A further submission was made that Tribunal in para 6.2 of the Order has given a factually wrong finding that the authorities below came to the conclusion that the appellant has failed to discharge the burden of proof as contemplated under Section 123 of the Customs Act. This submission is factually incorrect. The original authority clearly held that the appellants have not produced valid proof of the non-foreign origin of the seized goods and that the department's case of foreign origin of the seized goods stands unrebutted and hence proved. In this regard, his findings in page 7 of his order is reproduced below : "The concealment of the gold pieces in the grass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made that statement of Shri Zaki Ishrati was not signed by the officer in whose presence the statement was recorded and therefore, the same cannot be treated as statement under Section 118 and the said statement is not admissible as evidence. In this regard, several judgments were cited. The view of the applicant that the said statement cannot be considered as statement given under Section 108 of the Customs Act stands accepted as duly recorded in para 6.4 of the Tribunal's order. However, in the facts and circumstances of the case, which requires discharge of burden under Section 123 of the Customs Act by the appellant considering that the said document was in the hand writing of Shri Zaki Ishrati, the evidence contained in the said documents has been taken into account along with other evidences on record. Such an issue was not considered in the judgments relied upon on behalf of the applicant. Since submissions have been made that reliance placed on the said statement 'was not legal and proper', a finding has been given on the nature of evidence. It is to be appreciated that the said evidence is being considered in a quasi judicial proceedings where strict rules of evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged the jurisdiction of the adjudicating authority but submitted to the jurisdiction not once but twice. In fact, they submitted to the jurisdiction for the second time in pursuance of direction of the Tribunal. It has also not been shown that any prejudice has been caused by the adjudication having been done by an authority higher in rank than the one to whom the show cause notice directed reply to be furnished. It is also not in dispute that a higher ranking Customs authority can always exercise the powers of the officer junior in rank. Therefore, this submission is clearly devoid of merits and not dealing with the same specifically does not mean that this was not considered. 4.7 Some of the grounds in the grounds of appeal are 'routine' grounds calling for no specific finding in the order. For example Ground A reads as follows : A. Impugned O-in-A is unsustainable since it does not, at all, deal with any of the submissions, legal propositions, and various requests made before the Commissioner orally as well as in writing at the time of personal hearing held before him on 13-4-2005. &emsp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made that several documents such as bail application, bail order of Faiyaz Ahmed and certificates have been produced from different agencies have not been relied upon. A submission has also been made that the gold has not been sent to mint to ascertain the foreign origin as requested by them. 5. It is pertinent to note that all submissions made during personal hearing have been considered and not found acceptable and further the order was dictated in the open court in the presence of Representatives of both sides. 6. Certain observations were attributed to the Tribunal in the application received on 8-6-2010. It is not only false and baseless and such submission appears to be mischievous. However, the said observations were found only in the 'wrong petition' filed by them but the same stand omitted in the "correct petition" filed later by them on 14-6-2010. Further the claim that several submissions made by the learned advocate has not been considered by the Tribunal has been made without any basis obviously, on hearsay and perhaps attributable to communication gap between the applicant and his counsel. 7. From the above, the following emerges :- (a) &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
