1. The Miscellaneous Application is for rectification of the mistakes in Order No. C-II/2905/WZB/03 dated 12-11-2003 [2004 (163) E.L.T. 326 (T)] by which the appeal was rejected but the penalty was brought down from Rs. 50.00 lakhs to Rs. 35.00 lakhs.
2. Arguing on the application Mr. Willingdon Christian, draws our attention to the fact that the Tribunal has considered that 27757.750 kg of finished texturised yarn was in excess whereas the fact is that the same was 26,365.50 kg. He further submits that a cumulative penalty was imposed which was not correct. Our attention has also been drawn to various other grounds raised in the Miscellaneous Application. However, after hearing the SDR, we find that all these pleas are on merits of the case and cannot be said to be the mistakes which are apparent on the face of the records. The prayer to reduce quantum of penalty cannot, by any stretch of imagination be considered as a mistake on the part of the Tribunal. It has been held by the Hon'ble High Court in the case of Krishan Madan v. Deptt. of Customs [2002 (140) E.L.T. 52 (Del.)] that it is only patent and obvious mistake whose discovery is not dependent on argument or elaboration, which can be rectified under the provisions of the Customs Act, 1962. It is only the amendment of the order which is permissible and no new order can be substituted in place of the earlier one. To the same effect is the Larger Bench of the Tribunal's decision in the case of Dinkar Khindria v. CC, New Delhi - 2000 (118) E.L.T. 77 (Tribunal - LB) inasmuch all the above grounds raised by the appellants are in the nature of grounds of appeal, the same cannot be allowed. It is well settled that under the guise of rectification of mistake, review of the order cannot be sought.
3. However, we find that the appellant have also taken a ground that vide the impugned order the adjudicating authority has ordered confiscation of land, building, plant and machinery etc. with an option to the appellant to redeem the same on payment of redemption fine of Rs. 10.00 lakhs. It is further stated that vide impugned order, the adjudicating authority has also ordered for payment of interest under the provisions of Section 11AB. There is no decision by the Tribunal on the said two points. Having regard to the above contention of the advocate we order for addition of the following two paragraphs in the Tribunal's order dated 12-11-2003 referred supra.
4. "Para 8. We set aside the order of confiscation of land, building, plant and machinery etc." 5. "Para 9. As regards interest, it is well settled that the interest in respect of the demands prior to the period when the provisions of Section 11AB came into existence cannot be demanded. The adjudicating authority will quantify the interest while keeping the said legal position in mind."