TMI Blog2020 (11) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... e same is applicable in their case, and also they were not given the opportunity to argue against the same - After having considered and recorded the findings as available in the Order of Commissioner, tribunal has referred to this decision of Hon ble Bombay High Court and the other decisions to finally conclude the issue at para 4.7. In our view finding of facts and law as recorded in para 4.7 cannot be brushed aside as an error apparent on record for the purpose of Section 129 B(2). The decision in respect of the power of rectification, referred by the appellant will come into play only if it can be shown that there exists an error apparent on record in the impugned order. In present case in view of this we find the decision referred in para 11, 12 13 of the Rectification application filed by the appellant as distinguishable and not applicable. The application filed under Section 129 B (2) of the Customs Act, 1962, praying for rectification of mistake apparent on the face of the record is dismissed. - Customs Miscellaneous Application (ROM) No. 85113 of 2020 in Customs Appeal No. 86379 of 2015 - M/85236/2020 - Dated:- 3-11-2020 - HON BLE MR. S.K. MOHANTY, MEMBER (JUDI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of fulfilling. d. Further, to the above, it was submitted that, demand of interest on duty allowed to be debited from the EPCG licences would be contrary to the provisions under the law as interest is leviable on duty recoverable or liable to be paid by an assessee, and the duty so debited would become recoverable only when the Appellant fails to fulfill the export obligation. e. Demand of interest in the present case goes on to indirectly deny the benefit of exemption notification despite there being no contravention on the part of the Appellant to fulfill the export obligation. f. Also, it was submitted that, the Hon'ble Court even in cases of clandestine removal extended the benefit of exemption from payment of customs duty to the defaulting assessee's holding that there is no provision under the law by which an assessee guilty of unauthorized removals is liable to pay duty at higher tariff. When even in such cases, no recovery of demand has been allowed to the extent of exempted portion of duty, there is no question of payment of interest. Similarly, in the present case, no interest can be demanded on the exempted portion of duty allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n decisions of the Hon'ble Supreme Court without discussing its applicability to the facts of the present case and without taking note of the i) BOA order dated 13.11.2007 enclosed in the appeal (Page 176-179) and ii) EPCG Committee order dated 27.10.2014 enclosed in the appeal (Page 202-202A) pointed out during the hearing. The EPCG Committee order specifically mentioned that the custom duty prevalent on the date of import be charged to the Applicant without interest (as a special case). 6. It is submitted that the Hon'ble Tribunal ought to have considered all the submissions made by the Applicant and also given a finding in respect of the said submissions made. Non-consideration of the submissions made before the Hon'ble Tribunal is a mistake apparent from the face of the record. 7. It is further submitted that it is a settled position in law as laid down by the Hon'ble Supreme Court in catena of decisions that the courts should not place reliance on the decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Further, it also held that ratio of a decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case. 10. It is submitted in the absence of any independent findings in the final order on all the submissions made before the Hon'ble Tribunal, the said error is a mistake apparent on the face of the record and accordingly it is humbly prayed that this Hon'ble Tribunal may be pleased to recall the impugned order and re-list the appeal for hearing. 11. It is submitted that this Hon'ble Tribunal has held that the rectification of mistake applications are maintainable in similar matters as in the present case and have re-called the orders where independent findings on the submissions made by the Applicant during the hearing had not been given viz: Rio Tinto India Pvt. Ltd. vs. CC, Nagpur 2006 (198) ELT 553 (Tri Mumbai) GTL Infrastructure Ltd. vs. CCE, Mumbai 2016 (45) STR 389 (Tri Mumbai) 12. The Hon'ble Supreme Court in the case of Asst. Commr. Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd. [2008 (230) ELT 385 (SC)] while analyzing the provision of rectification of mistake inter alia held that An error apparent on the face of the record means an error which strikes on mere looking and does not need long-dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Jaikant Singh, Additional Director General of Foreign Trade on 19.09.2014. The decision of the Committee is reproduced below: The case was placed before EPCG Committee in its meeting held on 24.07.2014 wherein it was decided to defer the case with the direction to call for copies of Bills of entry and furnish the same to DOR. The Committee observed that a. the firm had initially imported some Capital goods for providing services under 5 EPCG Authorizations issued to them by RA Mumbai in 2005; b. However the firm did not utilize the EPCG authorizations fully and imported the other capital goods under EOU scheme as they had become an EOU on 29.03.2006; c. Subsequently the Board of Approval took a decision for cancellation of EOU permission ab initio and directed the unit to import under the EPCG scheme. d. The Committee observed that on the date of import and clearance of goods under as 100% EOU, the firm was in possession of valid EPCG authorizations for the same capital goods; e. The firm has represented that the board of approval had cancelled the 100% EOU status and prior to this decision all the imports were made and cleared as per proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed. 5.0 Arguing for the revenue learned Authorized Representative submits that,- There is no justification for this application under Section 129B (2). Tribunal has in the impugned order considered all the submissions made by the applicant, in the appeal and during the course of argument on appeals; The Commissioner has specifically recorded that the letter dated 24.10.2014 at paragraph (e) relating to waiver of interest referred by the learned counsel was never accepted by Department of Revenue and they have vide their letter dated 5.11.2014 sought the same to be expunged. He specifically pointed to para 27 (xiii) of the order of Commissioner. Since the submissions made have been duly considered by the tribunal while passing the impugned order, and para 4.7, which learned counsel has been referred to while seeking rectification of this order is not the part of the record but a finding rendered the, same cannot be said to be an error apparent from record. The application thus needs to be dismissed. 6.0 We have considered the impugned order, the submissions made in the application for rectification of mistake and those made during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings as available in the Order of Commissioner, tribunal has referred to this decision of Hon ble Bombay High Court and the other decisions to finally conclude the issue at para 4.7. In our view finding of facts and law as recorded in para 4.7 cannot be brushed aside as an error apparent on record for the purpose of Section 129 B(2). 7.5 The decision in respect of the power of rectification, referred by the appellant will come into play only if it can be shown that there exists an error apparent on record in the impugned order. In present case in view of this we find the decision referred in para 11, 12 13 of the Rectification application filed by the appellant as distinguishable and not applicable. 7.6 Hon ble Apex Court has in the case of RDC Concrete (I) Ltd [2011 (270) ELT 625 (SC)] held as follows: 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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