TMI Blog2001 (10) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure showing the standard fitment of the chassis. However, whenever there is a change in the standard fitment and the same are replaced with other fitments, the appellants charged additional amount from their customers. The dispute in the present appeal related to chassis of model 1612. According to the appellants the standard fitments of the said model was engine 697 and gear box 40. However, by mistake the said standard fitment could not be shown in chassis 1612 and the price list filed by them wrongly showed that engine No. 692 and gear box 30 were the standard fitments for chassis 1612. The said contention of the appellant was considered by the Tribunal while passing the order under reference and was not found favour with by the Tribunal. Accordingly their appeal was rejected by not accepting the plea of mistake on their part. 4. Shri V. Sreedharan, ld. Adv. appearing for the appellant submits that apart from the plea of mistake, M/s. TELCO has taken other pleas also which were argued but have not been considered by the Bench. It is the applicants' case that a specific contention was raised by M/s. TELCO in their submissions made before the Commissioner as also before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectification. The Hon'ble Allahabad High Court in the case of Laxmi Electronic Corpn. Ltd. v. CIT - 1991 (188) ITR 391 (All.), has held that where the Tribunal fails or omits to deal with an important contention affecting the merits of the case the same should be deemed to be a mistake apparent from the records. It is worthwhile to reproduce the observations of the Hon'ble High Court for better appreciation :- "By way of illustration, takes case where an assessee files an appeal raising four grounds, which he urges at the hearing of the appeal. The Tribunal, however, dismisses the appeal only on ground No. 4. Would it not be open to the assessee in such a case to ask for reopening and rehearing of the appeal on the ground that the first three contentions urged by him have not been noticed or discussed by the Tribunal ? We think that such power must be held to be inherent in the Tribunal, since it would be a case where the party has suffered prejudice for no fault of his but on account of a mistake or error on the part of the Tribunal. It is a well-settled proposition that an act of Court (which, in the context, means and includes a Tribunal of the nature of the Income-tax Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no reason to hold that such an error would not be one apparent from the record. 9. The appellant has also referred to a number of other decisions, but in our views the Supreme Court's judgment in the case of Aldoc Pharmaceuticals v. CCE, Jaipur - 1995 (76) E.L.T. 7(S.C.) clinches the issue. It was observed by the Hon'ble Court that when the Tribunal has not considered the documents placed by the appellants, the proper course for the appellants was to file an application before the Tribunal bringing the above documents to its notice and asking for appropriate orders. Similarly the Hon'ble Supreme Court while disposing of the appeal filed by Art Rubber Indus. Ltd. as reported in 1996 (83) E.L.T. (A38) has observed that - "if the Counsel for the appellant says that he had argued his points and the Tribunal has not considered it, the proper course for him is to approach the Tribunal according to law and it is for the Tribunal to go into the correctness of the said arguments". The above decisions of the Hon'ble Supreme Court would show that in cases where arguments were advanced before the Tribunal on a particular point and the same were not considered, it is open to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engine and GBS 40 gear box had not been added over and above the assessable value is not tenable. All models of 1612 vehicles are fitted with 697 NA engine and GBS 40 gear box and the value of 697 NA engine and GBS 40 gear box is included in the assessable value of 1612 vehicles on which the Appellants had paid the excise duty. This is evident from the fact that the assessable value remains the same in case of our sale through RSO and sale at factory gate. The vehicle despatch memo annexed to the reply clearly showed that 697 NA engine and GBS 40 gear box are part and parcel of the chassis as standard fitment and not an additional item, so as to attract the burden of additional excise duty." 12. In my view the above contention of the appellants has been considered in details and the findings are recorded in Paras 5 to 7 of the impugned order of the Tribunal which need not be reproduced here. The appellants have now come up with a ROM petition contending that the Tribunal have not recorded any findings on their submission that there is no differential amount collected on account of these extra items from their customers and on that count there is a mistake apparent in it calling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of the provisions of Section 35C(2) of the Central Excise Act. 15. Shri V. Sreedharan, learned Advocate, submitted that the Motor Vehicle Chassis manufactured by TELCO are fitted according to the configuration and technical specification and the price declared by them is based according to such specification; that the assessable value of the chassis depends upon the fitments; that the Revenue had demanded Central Excise duty holding that various types of 1612 models were fitted with 697 NA engine and GBS 40 gear box but additional amount of Rs. 15,290/- was not added in the assessable value. He further, submitted that the applicants had taken three pleas against the confirmation of duty namely (i) As a result of oversight and/or human error model No. 1612 remained to be mentioned in the Price List along with the models fitted with 697 NA engine and GBS 40 gear box; (ii) During the material period, all the model 1612 chassis were cleared fitted with the said engine gear box; and (iii) They had not collected any extra amount on account of fitment of 697 NA engine and GBS 40 gear box from their buyers. He contended that in the Final Order dated 31-10-2000, the crucial poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not show any sign of their being relatable to the assessee or to the goods manufactured by them, is an error apparent on the record and that taking these reports on evidence without discarding the ground raised by the assessee is also an apparent mistake of fact. He also relied upon the decision in I.T.O. v. Income Tax Appellate Tribunal, 1965 (58) ITR 634 (All.) wherein Allahabad High Court held as under : "Where, in a judgment or order of the Appellate Tribunal, an error has crept in, not as a result of any fault of the assessee, but attributable entirely to the Tribunal in having lost sight of a material fact at the time of writing its order or judgment, which fact was duly brought to its notice by the assessee, there would be an error apparent from the record which could be rectified under Section 35 of the Indian Income Tax Act." In this regard the learned Advocate referred to the observations of learned Member (Judicial) in Para 10 of the Misc. Order under reference wherein it has been mentioned that "the said plea has not been considered and no final view has been taken on the same." Finally the learned Advocate mentioned that the observation of the learned Member (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra, the power of rectification of mistake is a limited power and this power is restricted to rectification of the mistake apparent from the record calling for amendment of the order. The learned Member (Judicial) has rightly framed the issue by observing that the answer to the question, as to whether non-consideration of one of the submissions amounts to an error apparent on the face of the record, "would vary depending upon the nature of the pleas raised by the appellants. If the pleas raised are independent and alternative to each other then non-consideration of any one of them would amount to an error. However, if the arguments of the appellants are directed towards the same plea and are for strengthening the said plea, non-consideration of each one of them may not amount to an error apparent on the face of the records requiring any rectification." I am of the view that the various pleas raised by the appellants were neither independent nor alternative to each other. The plea, non-consideration of which is subject matter of the present applications, was only directed to strengthen the plea that there was a clerical mistake in non mentioning of the chassis of model 1612 in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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