Full Judgment
2. The learned DR Shri Jehangir Singh submits that the Tribunal has wrongly held that the burden of proof lies on the department and in this connection, he refers to the relevant paragraphs in the show cause notice and the adjudication order which according to him, is to be construed as having invoked the provisions of Section 123 of the Customs Act even though there is no mention of the same in the adjudication order.
3. Strongly opposing the application, the learned Counsel Shri Kang submits at the outset that the show cause notice was not on record when the Tribunal heard the arguments on the appeal and disposed of the case in the Open Court. He further submits that the adjudication order states that the provisions of Chapter IV A have been violated but nowhere did the adjudicating authority hold that the provisions of Section 123 of the Customs Act, 1962 are attracted to the facts of the case. He draws our attention to the order of the Tribunal in the case of Collector of Central Excise, Bhubneshwar v. Shri Durga Glass Works Pvt. Ltd. reported in 1993 (68) E.L.T. 177 in which the Tribunal has held that documents/material not on record cannot be considered for rectification and cannot be taken into account for the purpose of making any rectification of error. He referred to paragraph 4 of the Tribunal order in which the Tribunal has conclusively held that contravention of Chapter IV A in respect of Zip Fastener is not established against the appellants/respondents and to the present ROM application and has clearly stated that since the Collector has not invoked Section 123 in the impugned order, the burden of proving that the goods were of smuggled nature, lies on the department. He submits that no error arises from the order of the Tribunal and what the Revenue is seeking is a review of the final order which is not permissible in law. He therefore, urges that the application may be rejected.
4. We have carefully considered the submissions of both the sides. We find that the learned Counsel is correct in his submission that the show cause notice was not on record before the Tribunal at the time of hearing of the appeal and passing of the final order. The show cause notice has now been filed by the Revenue alongwith the application for rectification. This is new material which was not on record and therefore, could not be considered by the Tribunal by passing its final order and hence following the ratio of the Tribunal's judgement in the case of Shri Durga Glass Works (supra), we hold that no mistake arises from non-consideration of the document which was not on record at any stage prior to the ROM application. We have also gone through the relevant paragraph of the Tribunals order and we find that this aspect has been dealt with in the order wherein it has been held that contravention of the provisions of Chapter IV A in respect of Zip Fasteners is not established against the appellants and the burden of proving the smuggled nature of the Zip Fasteners lies upon the department which burden has not been discharged. We also find that it has been categorically stated that the provisions of Section 123 of the Customs Act have not been invoked in the adjudication order. In this view of the matter, we hold that no mistake arises out of the order of the Tribunal and hence reject the ROM application.