Judgment:
1. In the present application for rectification of mistake (ROM), the applicants, M/s. Tarai Foods Ltd. have prayed that the order dated 11.05.2000 passed by the Tribunal be recalled and rectified and the adjudication order passed by the Asstt. Commissioner be held as not sustainable on account of the show cause notice issued by a person without jurisdiction.
2. Shri A.K. Jain, Advocate submits that against the Tribunal's Order dated 11.05.2000, M/s. Tarai Foods Ltd. have already filed an appeal with the Hon'ble Supreme Court of India and on 23.02.2001, the Hon'ble Supreme Court had already admitted the appeal. He submits that appropriate orders be passed on the applicants' rectification of mistake application.
3. We have heard Shri A.K. Jain, Advocate for the applicants and Shri R.C.Sankhla, JDR for the Revenue.
BEFORE THE HON'BLE CUSTOMS, EXCISE & GOLD (CONTROL) APPELLATE TRIBUNAL PETITION FOR RECTIFICATION OF MISTAKE FINAL ORDER NO 161/200-D DATED 11.5.2000 Respondents after perusing the impugned final order find that the Hon'ble Tribunal had not followed the judgment of the Hon'ble Supreme Court in the case of M/s Astra Pharmaceutical (P) Ltd., Vs. CCE Chandigarh reported as 1995 (75) ELT 215 on the ground that the said judgment was given in the context of medicines whereas the goods involved in the case of Respondents are "French Fries".
In this respect respondents would like to invite the attention of the Hon'ble Tribunal to the judgment of the Co-ordinate Bench in the case of Avinash prefabs Vs CCE Bangalore reported as 2000 (37) RLT 436 where in relation to the Engineering goods, the said Bench had granted the benefit of Notification No.175/86 following the Astra Pharmaceutical's case. The said judgment is of 16.9.99 which is prior to the date of the impugned final order which is of 11.5.2000.
The Larger Bench of the Hon'ble Tribunal in the case of Sail Vs CCE Buvneshwar reported as 2000 (39) RLT 2 has held that co-ordinate Bench of CEGAT not t deliver a judgment contrary to an earlier judgment of the CEGAT. Hon'ble Supreme Court in the case of Hari Singh Vs. State of Haryana reported as 1993 (66) ELT 23 has held that Courts of co-ordinate jurisdiction should have consistent opinions in respect of an identical set of fact or on question of law.
Respondents would humbly submit that the definition of "Brand Name" given in para VIII of the notification No. 175/86, 1/93, & Chapter Note 4 of chapter 20 of the Central Excise Tariff Act 1985, is the same as given in Explanation 1 of Tariff item 14E of the Old Tariff and which was the issue before the Hon'ble Supreme Court in the case of Astra Pharmaceutical (P) Ltd. Since there already existed a judgment of the Hon'ble Tribunal in the case of Avinash Prefabs (supra) where against Engineering Goods the benefit of Notification No.175/86 had been allowed, following the Astra Pharmaceutical's judgment therefore respondents would pray for rectification of the impugned final order in view of the decision given in the case of Dalmia Laminators Vs. CCE reported as 1991 (56) ELT 571 (Tribunal).
The humble respondents would submit that there lies a mistake which is apparent from the record in as much as the Show Cause Notice. C.No.20-CE/demand/91/831 dated 13.8.97 demanding the duty of Rs.3,88,261.01 (as per the Calculation Chart ) was issued by the Superintendent, Customs & Central Excise, Rudrapur on 3.8.97 which was contrary to the Circular No. 299/15/97-CX dated 27.2.97 issued by the Central Board of Excise & Customs (in short 'the Board') vide which cases which did not involve allegation of suppression, fraud, collusion or any wilful statements were to be adjudicated by the following persons as per para 3(B) thereof:-Commissioner Without any limitAddl. Commissioner/Deputy Above Rs. 2 lakhs and upto Rs.10 lakhsCommissioner Further in para 5.2, it was clarified that in respect of case covered under Category 'B' of para 3 above, show cause notice will be issued by the Commissioner and such notices will be issued by the Asstt.
Commissioner when they are adjudicated by Deputy Commissioner/Addl.
Commissioner/Commissioner.
Therefore, from the perusal of the contents of para 5.2 of the Circular referred above, it is apparent that where the duty demand was upto Rs. 2 lakhs, the same could be adjudicated by the Asstt. Commissioner and for which Superintendent could issue show cause notice. But where demand exceeds the amount of Rs.2 lakhs, the same was to be adjudicated either by the Addl. Commissioner or Deputy Commissioner and for which Asstt. Commissioner was to issue the show cause notice. Since the Calculation Chart annexed with the show cause notice proposed duty of Rs.3,88,261.01 which was more than Rs.2 lakhs then as per the above Circular, the show cause notice should have been issued by the Asstt.
Commissioner and not the Superintendent who in fact had issued the show cause notice in this case. The adjudication order in turn is liable to be set aside on the ground that it has been adjudicated by the Asstt.
Commissioner when in fact it had to be adjudicated wither by the Addl.
Commissioner or Deputy Commissioner. Since this is a mistake apparent from record, therefore, respondents would humbly submit that in view of the Board's Circular which is binding upon the lower authorities in terms of law laid down by the Hon'ble supreme Court in the case of Paper products Vs. CCE reported as 1999 (112) ELT 765, the impugned Final Order be recalled and the mistake apparent from record be rectified in view of provisions of Section 35C(2) of the Act.
Respondents would also rely upon the judgment in the case of Calcutta Steel Industries Vs CCE, Chandigarh reported as 2000 (120) ELT 691(T) where following the judgment of paper products (supra) this Hon'ble Tribunal has held that the Circulars issued by the Board are binding on the lower authorities. Since this judgment has been reported susequent to the date of the final order therefore in terms of the judgment given by the Hon'ble Allahabad High Court which is the jurisdictictional High Court in this case in the matter of Devendra Prakash Vs Income Tax Officer(SIC)..
The expression 'record' means that it consists not merely of assessment order but includes all proceedings and materials on which the assessment is based as has been held by the Hon'ble Supreme Court in the case of Maharana Mills Ltd. Vs. ITO reported as AIR 1959 881. This has been re-affirmed in the case of Mahender mills Lts. Vs. P.B. Desai, Asstt, Commissioner of Income Tax and Anr. Reported as AIR 1975 SC 910.
Reference in this connection is also invited to this Hon'ble Court's judgement in the case of CCE Vs. EID Parry (India) Ltd. reported as 1989 (40) ELT 139.
Since adjudication order is based on the show cause notice and which show cause notice forms a part of record, therefore, the impugned Final Order needs to be rectified on account of the fact that the show cause notice has been issued by a person who did not have the jurisdiction to issue show cause notice under the given facts and circumstances of the case.
It is, therefore, prayed that the impugned Final Order be recalled and rectified and adjudication order passed by the Asstt. Commissioner be held not sustainable on account of the show cause notice issued by a person without jurisdiction.
Respondents would also pray for an immediate and out of turn listing of this matter because in case the Hon'ble Tribunal does not decide this issue then available to them for filing an appeal in the Hon'ble Supreme Court is fast running out.
3. We have carefully considered the mater. WE find that the request in the ROM application is for recall of the order and a number of decisions have been cited in the Rom application as wil be seen from the application extracted above. We consider that what the applicants have sought is review of the order already passed in the garb of the ROM application. This review of the order already passed is not permissible under the ROM application as has been held buy the Tribunal's Larger Bench in the case of Dinkar Khindrai Vs. Collector of customs, New Delhi - 2000 (118) ELT 77 (Tribunal - Larger Bench).
4. The ld. Advocate had referred to certain decisions wherein the Tribunal has taken a view that the order already passed could be reviewed by the another bench in the order if the fresh facts come to notice. He also refers to the Supreme Court decision reported at AIR 1961 SC 699.
5.We find that a considered view has already been taken by the Larger Bench of the Tribunal as referred to above and as it will be seen from the Rom Application, the matter has been examined in detail and we do not consider that there is any merit in the present ROM application.
The ROM application is dismissed. Ordered accordingly.