Judgment:
1. This order will dispose of ROM application moved by the appellants seeking recall of the Tribunal's Final Order No. A/1335/99-NB(S) and stay order No. S/573/99-NB(S) both dated 25.10.99 vide which the appeal and stay application filed by them, against the Order-in-appeal of the Commissioner (Appeals) who declined their stay application for the pre-deposit of the duty amount firstly and later on dismissed their appeal for non-deposit of the amount, vide order dated 17.6.99 were rejected.
2. The ld. Counsultant appearing on behalf of the appellants has sought the recall of the stay as well as Final Order of the Tribunal on the ground the Commissioner (Appeals) dismissed the stay application of the appellants without hearing them and as such the Order-in-appeal passed by him dismissing their appeal under Section 35 F of the Act was illegal and improper. In support of his contention, he has placed reliance on 1. Ceat Ltd. vs. Union of india 1995 (109) ELT 336 Bombay High Court.
2. Jesus Sales Corpn. vs. Union of india 1995 (75) ELT 242 Delhi High Court 3. Robin Agarwal vs. Commissioner Customs Calcutta 1999 (111) ELT 45 (CEGAT)Ramesh Wadhera vs. Commissioner of Customs, Lucknow 1999 (112) ELT 632 (CEGAT).
5. Velcord Textiles vs. Union of India 1999 (111) ELT 351 Bombay High Court 7. Hoogly Mills Ltd. vs. Union of India 1999 (108) 637 Calcutta High Court 8. Polygas Acrelic Mfg. Co. Ltd. vs.CC Amritsar 1999 (107) ELT 798 (T)Commissioner of Customs Chennai vs. Bhanu Scientific Instrument Company 3. On the other hand, ld. SDR has contended that no mistake of fact or law appears on the face of the impugned order of the Tribunal and (SIC) of order cannot be sought on the ground that the order passed is not legal. Therefore, the application of the appellants deserves to be dismissed.
4. I have gone through the record. The facts are not much in dispute.
The appellants were served with the show cause notice dated 12/13.8.98 vide which duty demand was raised from them for having wronly classified their products i.e. plastic pipes under sub-heading 3915.90 of the CETA, by describing as waste and scrap of unmarketable pipes.
After getting their reply the Assistant Commissioner confirmed the duty demand of Rs.5838815 and imposed penalty of Rs.5,000/- on them. When they filed the appeal against that order of the Assistant Commissioner and moved stay application seeking waiver of the pre-deposit of the duty and penalty amounts, the Commissioner (Appeals) vide order dated 24/25.5.1999 dismissed their stay application and directed them to deposit the amounts demanded within three weeks.
It also remains undisputed that they did not comply with the stay order and Commissioner (Appeals) through order dated 17.6.99 dismissed their appeal under Section 35 F of the Act.
5. The appellants filed appeal before the Tribunal against the order dated 17.6.99 of the Commissioner (Appeals) and also moved stay application for dispensing with the pre-deposit of the duty and penalty amounts. Their appeal and stay application both were dismissed by the Tribunal through final order dated 25.10.99 as the appeal was found to be not maintainable.
6. The recall of the above order of the Tribunal has been sought on the ground that initial stay order of the Commissioner (Appeals) direcing the appellants to depoisit entire amount of duty and penalty, was illegal as the same was passed without hearing them and as such their appeal for non-compliance with that order, could not be legally dismissed. But the appellants did not challenge that stay order of the Commissioner (Appeals) before the higher forum and that order became final. The Commissioner (Appeals) had no option but to dismiss their appeal under Section 35 F for having not complied with the stay order.
The Tribunal could not sit as Court of appeal on the stay order of the Commissioner (Appeals) being not appealable. The appellants could not also legally challenge the validity of the stay order of the Commissioner (Appeals) which had already become final, while filing the appeal against the Final Order passed under Section 35 F of the Act by the Commissioner (Appeals). The Final Order was passed as a consequence of non-compliance with his stay order by the Commissioner (Appeals).
The appeal of the appellants was consequently held to be not maintainable by the Tribunal as they could not be permitted to challenge indirectly the stay order of the Commissioner (Appeals) which they were not entitled to challenge directly being an interim order.
The ratio of the law in above referred cases relied upon by the Counsel wherein the cases were remanded, when the Commissioner (Appeals) dismissed the appeals of the appellants therein, under Section 35 F of the Act, cannot be made basis for recall of the impugned Final Order of the Tribunal. The scope of the Tribunal in a ROM application is quite limited. The ROM application cannot be treated as an appeal so as to rehear and redecide the matter. The application for rectification of mistake lies only for correction of a patent mistake in the judgement.
A decision on debatable point of law or facts cannot be taken as mistake apparent on face of the record. Rectification of mistake does not envisage the rectification of an alleged error of judgement. In this context a reference may be made to the Larger bench decision of this Tribunal in Dinkar Khindra vs. Commissioner of Customs [2000(118) ELT 77] wherein it has been so observed.
7. Therefore keeping in view the facts and circumstances of the case and the ratio of the law laid down in Dinkar Khindria case (Supra) by the Larger Bench, the ROM application of the appellants deserves to be dismissed.