TMI Blog2002 (12) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the impugned order and restore the original order dated 24th July, 1998. - 5946 of 1999 - - - Dated:- 4-12-2002 - S.N. Variava, and B.N. Agarwal, JJ. [Order]. - This appeal is against the order dated 19th April, 1999. 2. Briefly stated, the facts are as follows :- The respondents were called upon to show cause as to why they should not be made liable to pay duty and penalty for not having disclosed that they were manufacturing densified wood. The Commissioner, after hearing the respondents, held that the respondents were not manufacturing densified wood and that therefore they were not liable to pay duty. 3. The Department filed an appeal before the Customs, Excise Gold (Control) Appellate Tribunal (CEGAT). By an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of being heard." 5. At this stage it must be mentioned that under the Act there is no power of review available to the Tribunal. The only power available is the power of rectification of a mistake apparent from the record. 6. Mr. S.K. Bagaria, learned Counsel for the respondents had drawn our attention to the case of Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd. [1996 (82) E.L.T. 441 (S.C.)] wherein by a cryptic order, it has been mentioned that even if reliance is placed on a wrong provision of law, so long as power can be exercised under a different provision, then the power does not get invalidated. It is held that the exercise of the power under a wrong provision is error apparent on the face of the record. In our vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal did not have any power of review. He held that the application should be rejected. The Judicial Member took a contrary view. The Judicial Member, inter alia, observed in her order, as follows :- "... I fully agree with the observations made by the Hon'ble Vice President that a conscious decision given by the Tribunal based upon appreciation of evidence on record cannot be put to question by either side by pointing out to the errors and seeking their rectification and the proper course available is to challenge the order before the higher appellate authority.... .... Even in the absence of these test reports, the Tribunal might have come to the same conclusion, but in my views reliance on the reports is an error apparent on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion could also have been based on the other material which was relevant and which could be used. 14. In this case, admittedly while passing the order dated 24th July, 1998, apart from the reports, reliance had also been placed upon the literature of the respondents themselves. The Judicial Member notes that reliance had been placed upon this literature. Judicial Member therefore records, as noted above, that the Tribunal may again come to the same conclusion. If that be so, then it is clear that there is no mistake apparent on the record. In such a case there can be no rectification under Section 35C(2). We, therefore, set aside the impugned order and restore the original order dated 24th July, 1998. 15. The appeal is accordingly all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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