Full Judgment
Shri Bhagat also pleaded that the Member (Technical) Shri P.C. Jain to whom the point of difference was referred in para 8 of the order has mentioned that "Having gone through the entire evidence on record, I am of the view that a serious prejudice is likely to be caused to the appellants if they are not given the opportunity to cross-examine the statements of persons on whom the Department relies. Accordingly I agree with the learned Judicial Member and consider that the case is fit for remand as ordered by him.". Shri Bhagat further pleaded that the intention of the observations of Shri P.C.Jain, Technical (Member) is to allow for the cross-examination of only those persons whose statements had been relied upon and the number of such relied persons in the present matter is 110. In the circumstances, he pleaded for the rectification of the mistake. In support of his arguments, he cited the following judgments :-Raja Imports & Exports v. Collector of Customs, reported in 1991 (56)E.L.T. 220 (Tribunal)Payal Ashok Kumar Jindal v. Captain Ashok Kumar jindal, reported in 1992 (60) E.L.T. 19 (S.C.)Shally Thapar v. Collector of Customs, reported in 1993 (64) E.L.T. 31 (Tribunal) Shri Bhagat argued that the Tribunal should modify its order to the extent that cross-examination of 864 witnesses as against 110 relied upon.
2. Shri V. Sridharan, the learned advocate, who has appeared on behalf of the respondents /appellants pleaded that there is no mistake in the order passed by the Tribunal. He pleaded that the Tribunal had passed a reasoned order based on the show cause notice as well as the findings given by the Collector in his order. He drew the attention of the Bench to para 33.7 of the Collector's order which is reproduced below :- "33.7 It would thus appear from the above, that by providing copies of statements of the 864 persons and even by offering 10 parties for cross-examination as agreed upon on 16-3-1984 (out of which party cross examined 5 parties and the cross examination of others was waived), principles of natural justice have been complied with and the plea of the party is not tenable" Shri Sridharan pleaded that a perusal of para 33.7 shows that Collector had mentioned 864 witnesses in the said para and on the basis of that the Tribunal had passed the order. There is no whisper of 110 witnesses either in the show cause notice or in the order or in the arguments advanced by the Revenue before the Tribunal and as such the application for Rectification of Mistake needs to be dismissed. He further stated that the judgments cited by the learned DR are on principles of natural justice and not relevant to the present application. In support of his arguments, he cited a decision of the Tribunal in the case of Kusum Products Ltd v. Collector of C. Ex, reported in 1989 (44) E.L.T. 534 (Tribunal) and laid special emphasis on para 3 of the said judgment. He pleaded for the rejection of the R.O.M.3. We have heard both the sides and have gone through the facts and circumstances of the case and also considered the judgments cited by the learned DR. For the proper appreciation of the factual position, para No. 33.7 from the order passed by the Collector of Central Excise is reproduced below :- "33.7 It would thus appear from the above, that by providing copies of statements of the 864 persons and even by offering 10 parties for cross-examination as agreed upon on 16-3-1984 (out of which party cross examined 5 parties and the cross examination of others was waived), principles of natural justice have been complied with and the plea of the party is not tenable" The Tribunal after looking into the Order-in-Original had passed the order and the relevant extract from internal page 31 of the Tribunal's order is reproduced below :- "The revenue authorities should have offered the appellants an opportunity to cross-examine the 864 witnesses. Accordingly we set aside the impugned order and remand the matter to the Collector of Customs and Central Excise, Chandigarh for de novo examination in accordance with law" 4. There was a difference of opinion among the Members- and the following points of difference were referred to a 3rd Member, Shri P.C.Jain :- "(1) Whether on the facts and circumstances of the case there was violation of the principles of natural justice.
(2) If so, whether the order of the Judicial Member remanding the case for fresh disposal after complying with the principles of natural justice is in order" The 3rd Member, Shri P.C. Jain after hearing both the sides had passed an order and para No. 8 from the said judgment is reproduced below :- "8. Having gone through the entire evidence on record, I am of the view that a serious prejudice is likely to be caused to the appellants if they are not given the opportunity to cross-examine the statements of persons on whom the department relies.
Accordingly, I agree with the learned Judicial Member and consider that the case is fit for remand as ordered by him".
A perusal of the above clearly shows that the Tribunal had passed the order after looking into all the facts and circumstances of the case and ordered cross-examination of 864 witnesses as mentioned by the Collector in para No. 33.7 of his order. The learned D. R. has cited the following decisions in support of his arguments :-Raja Imports & Exports v. Collector of Customs, reported in 1991 (56) E.L.T. 220 (Tribunal) - Para numbers 28, 29, 30 on natural justice and cross-examination.Payal Ashok Kumar Jindal v. Captain Ashok Kumar Jindal, reported in 1992 (6) E.L.T. 19 (S.C.) - Para numbers 12 and 14 on natural justice.Shally Thapar v. Collector of Customs, reported in 1993 (64) E.L.T. 31 (Tribunal) - Para 5 on natural justice.
Whereas Shri V. Sridharan, the learned advocate, has cited a decision of the Tribunal in the case of Kusum Products Ltd v. Collector of Central Excise, reported in 1989 (44) E.L.T. 534 (Tribunal), where the Tribunal in para 3 had held as under :- A perusal of the above shows that a point which was not argued before the Tribunal has not to be agitated and no argument was advanced by the applicant/respondent that cross-examination of 110 persons whose statements had been relied upon and they should be examined. The Tribunal had duly looked into the Order-in-Original, the show cause notice and had duly considered the arguments advanced by both the sides and after having looked into the facts of the case had come to the conclusion and ordered for cross- examination of 864 witnesses. The learned D.R. in his arguments had referred to the judgment given by the 3rd Member where Shri PC. Jain Member (Technical) mentioned that "I am of the view that a serious prejudice is likely to be caused to the appellants if they are not given the opportunity to cross-examine the statements of persons on whom the department relies. Accordingly, I agree with the learned Judicial Member and consider that the case is fit for remand as ordered by him". We would like to observe that it is not open to the parties to read an order in piece-meal manner and enter into a controversy. In fact, we would like to observe that by the present application the applicant wants to review of the order passed by the Tribunal by its finding for the cross-examination of 864 witnesses and restricting the same to 110. Hon'ble Calcutta High Court in the case of Shew Paper Exchange v. I.T.O. and Ors., reported in (1974) 93 ITR 186 had held as under :-T.S. Balaram v. Volkart Brothers, reported in AIR 1971 S.C. 2204 has held as under :- "A mistake apparent from the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions".
5. In the matter before us, we have duly considered the submissions of both the sides and have passed the reasoned order. In view of the above observations as discussed, we do not have any power to review our own order, that whether 110 or 864 witnesses to be examined and a conclusion can be arrived at after elaborate arguments from both the sides. In view of the above observations, we do not find any merit in the R.O.M. application and the same is dismissed.