Sandeep Batra Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:
1. shri j.s. agarwal, ld. advocate appearing in the rom application filed by shri sandeep batra submits that the prayer made in the rom application is for recall of final order nos. a/875-877/98-nb (db), dated 9-10-1998 by which three appeals filed respectively by (i) m/s.nova udyog ltd., (ii) m/s. maharashtra steels ltd. and (iii) shri sandeep batra (the present applicant) were heard and disposed of. on consideration of the submissions made by the appellants in the three appeals, the tribunal was pleased to remand all the three appeals to the commissioner of central excise, meerut for affording the appellants an opportunity to cross examine shri o.p. singh, inspector.2. ld. counsel has contended that the appeal filed by shri sandeep batra (the present applicant) was against the order of the commissioner (appeals) imposing a penalty of rs. 50,000/- on the said appellant under rule 209 a of the central excise rules, 1944. in paragraph 16 of the final order of the tribunal, though the submissions of the counsel for shri sandeep batra had been dealt with (including his plea that he had not dealt with any excisable goods), the tribunal while disposing of the three appeals by one combined order, no finding had been given on the submissions made by appellant, shri sandeep batra in his appeal.ld. counsel submitted that this was a mistake apparent on the face of the record and, therefore, the final order may be recalled and the mistake rectified.3. shri m.m. pube, ld. jdr submitted in reply that the three appeals filed by m/s. nova udyog ltd., m/s. maharashtra steels ltd. and shri sandeep batra arose from the same impugned order of the commissioner of central excise, meerut dated 11-4-1996 and the facts relating to the appeals were common and inter-related. they had therefore been heard together and disposed of by a common final order of the tribunal. he submitted that no mistake apparent on the face of the record has been made out since the matter has been remanded for reconsideration and for affording the appellants an opportunity to cross-examine one of the officers.4. we have considered the submissions and have perused the record. the three appeals, which were considered and disposed of by the impugned final order, arise from the same set of facts and from the same impugned order. the appeals were also closely inter-connected. while the main charge against the two appellants, viz. m/s. nova udyog ltd. and m/s. maharashtra steels ltd. was that they were involved in the clandestine production, removal and receipt of stainless steel flats and billets, the allegation against shri sandeep batra was that of abetment and penalty was imposed on him under rule 209a of the central excise rules. on appreciation of evidence, the tribunal had taken the view that in the absence of cross examination of shri o.p. singh, inspector who had received the documents evidencing the duty paying character of the goods, (as claimed by the appellants) the department had not substantiated the charge of clandestine removal and the onus had not been "discharged by the department. the tribunal had therefore thought it fit to remand the matter to the commissioner for affording the appellants an opportunity to cross-examine shri o.p. singh, inspector, who (according to the appellants) had received the documents showing the duty paying character of the goods.5. since the main allegation is against the other two appellants, that of clandestine production/removal, and this has been referred to the commissioner for affording an opportunity to cross examine the witness, and since sustainability of allegation of abetment under rule 209a will depend on the result of the remand proceedings, we find that the non-recording of any findings in the said final order about the submissions made by shri sandeep batra does not amount to a mistake apparent on the face of the record. the question of rectification of any mistake does not therefore arise in this case.6. in this view of the matter, we do not find any merit in the instant rom application. the same is accordingly rejected.

Judgment:
1. Shri J.S. Agarwal, ld. Advocate appearing in the ROM Application filed by Shri Sandeep Batra submits that the prayer made in the ROM Application is for recall of Final Order Nos. A/875-877/98-NB (DB), dated 9-10-1998 by which three appeals filed respectively by (i) M/s.

Nova Udyog Ltd., (ii) M/s. Maharashtra Steels Ltd. and (iii) Shri Sandeep Batra (the present applicant) were heard and disposed of. On consideration of the submissions made by the appellants in the three appeals, the Tribunal was pleased to remand all the three appeals to the Commissioner of Central Excise, Meerut for affording the appellants an opportunity to cross examine Shri O.P. Singh, Inspector.

2. Ld. Counsel has contended that the appeal filed by Shri Sandeep Batra (the present applicant) was against the order of the Commissioner (Appeals) imposing a penalty of Rs. 50,000/- on the said Appellant under Rule 209 A of the Central Excise Rules, 1944. In Paragraph 16 of the Final Order of the Tribunal, though the submissions of the Counsel for Shri Sandeep Batra had been dealt with (including his plea that he had not dealt with any excisable goods), the Tribunal while disposing of the three appeals by one combined order, no finding had been given on the submissions made by appellant, Shri Sandeep Batra in his appeal.

Ld. Counsel submitted that this was a mistake apparent on the face of the record and, therefore, the Final Order may be recalled and the mistake rectified.

3. Shri M.M. Pube, ld. JDR submitted in reply that the three appeals filed by M/s. Nova Udyog Ltd., M/s. Maharashtra Steels Ltd. and Shri Sandeep Batra arose from the same impugned order of the Commissioner of Central Excise, Meerut dated 11-4-1996 and the facts relating to the appeals were common and inter-related. They had therefore been heard together and disposed of by a common Final Order of the Tribunal. He submitted that no mistake apparent on the face of the record has been made out since the matter has been remanded for reconsideration and for affording the appellants an opportunity to cross-examine one of the Officers.

4. We have considered the submissions and have perused the record. The three appeals, which were considered and disposed of by the impugned Final Order, arise from the same set of facts and from the same impugned order. The appeals were also closely inter-connected. While the main charge against the two appellants, viz. M/s. Nova Udyog Ltd. and M/s. Maharashtra Steels Ltd. was that they were involved in the clandestine production, removal and receipt of stainless steel flats and billets, the allegation against Shri Sandeep Batra was that of abetment and penalty was imposed on him under Rule 209A of the Central Excise Rules. On appreciation of evidence, the Tribunal had taken the view that in the absence of cross examination of Shri O.P. Singh, Inspector who had received the documents evidencing the duty paying character of the goods, (as claimed by the appellants) the Department had not substantiated the charge of clandestine removal and the onus had not been "discharged by the Department. The Tribunal had therefore thought it fit to remand the matter to the Commissioner for affording the appellants an opportunity to cross-examine Shri O.P. Singh, Inspector, who (according to the appellants) had received the documents showing the duty paying character of the goods.

5. Since the main allegation is against the other two appellants, that of clandestine production/removal, and this has been referred to the Commissioner for affording an opportunity to cross examine the witness, and since sustainability of allegation of abetment under Rule 209A will depend on the result of the remand proceedings, we find that the non-recording of any findings in the said Final Order about the submissions made by Shri Sandeep Batra does not amount to a mistake apparent on the face of the record. The question of rectification of any mistake does not therefore arise in this case.

6. In this view of the matter, we do not find any merit in the instant ROM Application. The same is accordingly rejected.