TMI Blog2021 (1) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... rore by letters dated May 15, 2009 and May 18, 2009. Pursuant to the show cause notice dated February 02, 2010 that was issued to the appellant, an order dated January 31, 2011 was passed by the Commissioner confiscating the goods with an option to redeem the goods on payment of fine. The Commissioner also seized the Indian currency and imposed penalties upon the appellant and the firm. The customs appeals filed by the appellant and the firm before the Tribunal to assail the aforesaid order dated January 31, 2011 passed by the Commissioner of Customs were finally decided on April 27, 2016. The confiscation of goods and Indian currency was held to be bad in law. It is as a consequence of this order passed by the Tribunal, that the appellant filed an application for refund of the amount of ₹ 1,00,00,000/- that was deposited during investigation and ₹ 3,25,000/- towards the pre-deposit for filing he appeals. The final order dated October, 18, 2018 appropriated an amount of ₹ 1,00,00,000/- deposited by the appellant during the investigation against the dues of M/s Ajit Exports. Specific grounds had been taken by the appellant in the appeal against the appropriation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record should be so manifest and clear that no Court would permit it to remain on record. It should be pertinent and self-evident and not require any elaborate discussion of evidence or argument. It was also observed that rectification of an order stems from the fundamental principle that justice is above all and it is to be exercised to remove the error and to disturb the finality. It would, therefore, be appropriate to rectify the error that is apparent on the record by setting aside that part of the order passed by the Commissioner that appropriates an amount of ₹ 1,00,00,000/- deposited by the Appellant during investigation towards the tax dues on M/s Ajit Exports - In the third line of paragraph 25 of the Final Order, ₹ 60 lakhs shall be deleted and shall be replaced by ₹ 60 thousand - That part of the order dated October 18, 2018 that directs for appropriation of ₹ 1,00,00,000/- deposited by the appellant during investigation is set aside. The application filed for rectification of mistakes is allowed. - Customs Miscellaneous Application (Rectification of Mistake) No. 70450 of 2019 In Customs Appeal No. 70351 of 2019 - MISCELLANOUS ORDER NO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication as it appears to be a typing mistake. ₹ 60 lakhs mentioned in the third line of paragraph 25 of the Final Order dated September 12, 2019 requires to be deleted and replaced by ₹ 60 thousand. 5. In regard to the prayer made in the context of appropriation of ₹ 1,00,00,000/- deposited by the applicant during investigation, it will be necessary to state the factual aspects relating to the filing of the appeal. 6. The appellant carries on business in the name and style of M/s Orbit Gold as sole proprietor. The case of the Department is that the appellant used to receive gold jewellery from one Bharat Jagda, which jewellery had been removed by Ajit Singh without payment of duty. The premises of the applicant were searched on February 06, 2009 by the officers of the Directorate of Revenue Intelligence and assorted gold jewellery weighing 1912.500 grams valued at approximately ₹ 19,08,000/-, gold bars and coins weighing 5207 grams valued at approximately 73,50,000/- and Indian currency of ₹ 3,19,400/- were seized. During investigation, statement of the appellant was recorded on September 04, 2009 and January 14, 2010. The appellant claims that d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the pendency of the aforesaid two customs appeals before the Tribunal, a show cause notice dated November 12, 2013 was also issued to the appellant calling upon the appellant to show cause as to why penalty should not be imposed upon him under section 112 of the Act and why the amount deposited by the appellant during investigation be not be appropriated against the duty payable on the duty free gold jewellery which was removed from the factory of M/s Ajit Exports. The appellant claims that this show cause notice was not served upon the appellant and an order dated October 18, 2018 was passed by the Commissioner imposing penalty of ₹ 60,000/- on the appellant under section 112 of the Act and ₹ 60,000/- on the propriety firm (M/s Orbit Gold) under section 112 of the Act and another ₹ 60,000/- under section 114 of the Act. 11. It is against this order dated October 18, 2018 passed by the Commissioner that the appellant preferred the present appeal before the Tribunal which was decided on September 12, 2019. The order passed by the Tribunal, in so far as the appellant is concerned, is reproduced below: 25. The Challenge in the present appeal is to impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriation of ₹ 1,00,00,000/- during investigation was wrongly appropriated against the duty liabilities of M/s Ajit Exports, Noida. (iii) Thus, when the order dated October 18, 2018 passed by the Commissioner was assailed by the appellant in the appeal filed before the Tribunal, the challenge made by the appellant against the appropriation of ₹ 1,00,00,000/- under the aforesaid order, the issue was required to be addressed by the Tribunal, but the Tribunal failed to address this issue in the Final order dated September 12, 2019 and, therefore, this apparent mistake that had crept in the order should be rectified; and (iv) The appellant had on February 12, 2017, pursuant to the order dated April 12, 2017 passed by the Tribunal in Customs Appeal No. 72 of 2011 and Customs Appeal No. 85 of 2011 filed by the Appellant even before the Final order dated September 12, 2019 was passed by the Tribunal, filed an application for refund of amount of ₹ 1,00,00,000/- that had been deposited by the appellant during investigation but the application is not being decided presumably for the reason that the amount had been appropriated against the dues of some other firm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y removed from factory of M/s Ajit Exports. This show cause notice was adjudicated by the Commissioner order dated October 18, 2018 which order was assailed in the appeal filed by the appellant before the Tribunal out of which the present application rectification of mistake has been filed. 18. As noted above, the final order dated October, 18, 2018 appropriated an amount of ₹ 1,00,00,000/- deposited by the appellant during the investigation against the dues of M/s Ajit Exports. Specific grounds had been taken by the appellant in the appeal against the appropriation of the amount deposited by the appellant during investigation and even in the written submissions this ground was taken. The relief claimed in the appeal was for setting aside the order dated October 18, 2018 passed by the Commissioner in its entirety and since it is this order that appropriates the amount deposited by the appellant during investigation, it cannot be urged that the appellant had not made any prayer for setting aside the order of appropriation of the amount. In such circumstances the contention advanced by the learned authorized representative of the Department that no relief had been claimed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which passed such decision for a fresh adjudication. What is, therefore, necessary for a mistake to be rectified is that it must be apparent from the record. 23. Both mistake and apparent‟ have been explained by the Supreme Court in Deva Metal Powders (P) Ltd. vs Commissioner, Trade Tax (UP) 2008 (221) ELT 16 (SC). The Supreme Court pointed out that mistake‟ means to take or understand wrongly or inaccurately or to make an error in interpreting and apparent‟ means visible; capable of being seen; obvious; plain. It has, therefore, been observed by the Supreme Court that a mistake which can be rectified is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The Supreme Court also pointed out that a mistake capable of being rectified is not confined to a clerical or arithmetical mistake as it has a different connotation in taxation laws and is mostly subjective. The dividing line is thin and indiscernible. It is something which a judiciously instructed mind can find out from the record in order to attract the power to rectify. However, a decision on a debatable point of law or fact which remains to be inve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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