| SooperKanoon Citation | sooperkanoon.com/7043 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai |
| Decided On | Sep-23-1993 |
| Judge | J T R., P Desai |
| Reported in | (1994)(50)LC391Tri(Mum.)bai |
| Appellant | V.P. Hameed and anr. |
| Respondent | Collector of Customs |
C/435/92 Bom and C/458/92 Bom, and also common Order No. 1315-22/93-WRB dt. 24.7.1993 in Ref-18/93 (with C/COD-23/93, C-Misc-60/93 Bom and C/Misc-78/93)in C/435/92 Bom and C/Ref-19/93 Bom, (with C/COD-24/93 Bom, C/Misc-61/93 Bom and C/Misc-79/93) in C/458/92 Bom, all of them are heard together and are being disposed of by this common order.
2. C/Misc/129-93 and C/Misc-130/93 Bom filed by S/Shri Hameed and Abdul Jabbar, for rectification of mistake in this Bench's Order No.256-257/93 -WRB dated 1.3.1993, C/Misc-130/93 Bom and C/Misc-132/93 are filed by them for rectification of mistake in this Bench's Order No.1315-22/93-WRB dated 29.7.1993, whereas C/Misc-117/93 and C/Misc-118/93 are filed by the Collector of Customs, for grant of stay against the operation of the order No. 256-257/93-WRB dated 1.3.1993 passed by this Bench, pending the disposal of the Reference made to the High Court vide Order No. 1315-22/93-WRB dated 29.7.1993.
3. A glance in brief, to the history of this litigation indicates that both the persons namely VP IIameed and Abdul Jabbar Muthumal came as passengers from Dubai, and landed at Bombay on 30.3.1992. As per the allegation of the department, they attempted to pass through "walk through" channel at the Customs enclosure, without any declaration and on screening their bags, the same were found to have contained gold bars, and personal search resulted in recovery of foreign currency.
Their statements were recorded, where they allegedly contended to have brought the same for one Mr. Kutti, who had also given the currency in Dollars to pay the Customs duty payable thereon. They also reportedly pleaded that they did approach one lady custom officer, to enquire as to where the duty was to be paid, and that they were intercepted before they could pay the duty. At a subsequent stage, they however came forward with the plea that the gold belonged to them and that they had bought the same at Dubai. On waiver of issue of Show Cause Notice, adjudication proceedings were conducted, and the gold was ordered absolute confiscation vide Section 111(d) of the Act, and the passengers were imposed personal penalties, vide Section 112 of the Act. In the appeals before the Tribunal, this Bench held that the gold had been carried for one Mr. Kutty, and as such the same was not considered as bana fide personal effects of the passengers. The liability to confiscation was therefore, upheld. However, considering the liberalised policy, they were granted option to pay fine in lieu of confiscation and the foreign currency ordered confiscation by the adjudicating authority, was ordered to be released. Against the said order, the Collector moved this Bench vide Section 130(1) of the Act, to refer to the High Court the issue of grant of relief under Section 125 of the Act, to the passengers, when the owner of the gold was held to be some one other than those passengers. The passengers also filed Miscellaneous applications seeking directions vide Rule 41 of the CEGAT Procedure Rules, to the department to give effect to the order passed in the appeals by this Bench. The passengers also filed cross objections pleading that if Reference was to be made to the High Court, they would desire that some questions formulated by them be also referred. This Bench after hearing both the sides, ordered reference to the High Court on two questions (one each out of those formulated by both the sides) and directed the department to implement the order, if stay against the implementation was not obtained.
4. Both the sides have thereafter filed the present set of applications.
5. Mr. Sunderrajan, the ld. Consultant, while producing for the first time, the copies of the statements of the passengers and conceding that those did not form part of the paper book for the hearing of the appeals as required vide Rule 16 of the CEGAT Procedure Rules, and then advancing his arguments on Misc. Applications No. C/129/93 and C/131/92 Bom filed for rectification of mistake in this Bench's Order No.256-257/93-WRB dt. 1.3.1993, in the appeals has submitted (i) that the Bench has erred in holding that the passengers had tried to walk through green channel, whereas their statement indicates that they had approached one lady customs officer and has informed her that they wanted to pay duty, but could not understand what she told, because of the language problem, and that they had no intention to evade payment of duty, (ii) that though the panchnama was challenged by them, this Bench has held that the panchnama has not been challenged (iii) that the Bench has overlooked the purchase receipts which were already on record and has held that the gold was brought for one Mr. Kutty, though the initial statement given, was already retracted and the claim for ownership was already made. Besides highlighting these points, the ld.Consultant has submitted that some more grounds as raised in the application be also considered and the errors in the impugned orders be rectified.
6. Advancing his arguments in relation to Misc. application Nos.
C/130/93 and C/132/93 Bom, for rectification of mistakes in this Bench's order No. 1315-22/93-WRB dated 29.7.1993, the ld. consultant has submitted that the questions as formulated are redundant or contrary to factual and legal position, and has based his submission on virtually the same grounds as raised in the other applications for rectification.
7. Mr. K.M. Mondal, the Ld. SDR, while opposing both the application has submitted that the passengers, by filing such application and raising various contentions, are only making an attempt to get the entire order reviewed, on practically the same set of arguments which were already advanced at the hearing of the appeals, but which were rejected by the Bench. In his submission, there was no overlooking of any fact or document by the Tribunal, and mere appreciation thereof, not to the desire of the passengers, could not be a ground to seek review on rectification.
8. Going through the applications filed as also the record of the appeal and the order No. 256-257/93-WRB dated 1.3.1992, it appears that instead of clearly pinpointing the factual position, on the record and mistakes alleged to have occurred in the order of the Bench, the applicants passengers have virtually re-argued the appeal, and have pleaded for review of the entire order. The right to get the order rectified is a restricted one and falls within a short compass. It does not entitle the party to re-argue the entire appeal or call upon the Tribunal to reassess the entire order. What is permitted under the said provision is to highlight specific fact or document which though available on record of the appeal have been overlooked by the Bench, and seek rectification in order, to the extent of the effect of such fact or document on the final order. Re-argument on the entire appeal is not what is contemplated.
9. Vide Rule 16 of CECAT Procedure Rules, the party before the Tribunal, is required to file such evidence and documents which were before the adjudicating authority and which the concerned party wishes the Tribunal to re-examine the same for the purpose of determining the issues raised before the Tribunal, in the form of a paper book The record of adjudication proceedings is never forwarded to the Tribunal and the Tribunal does not call for the original record, except under some exceptional circumstances, when such a prayer is specifically made and/or the Tribunal feels it expedient to look into the original record. Ordinarily the Tribunal would confine itself to the documents produced in the paper book or if no such paper book is produced, to the narration made in the Order-in-Original under the assumption that the parties to the appeals do not consider it necessary to refer to any other documents.
10. If the document is not placed for consideration by the Tribunal, in the form of paper book, though the Rules made specific provision therefor, it may not now be open to a party to plead that a particular evidence has been overlooked, and come forward with a prayer for rectification in the order, basing the plea on the document not brought on record of the appeal 11. Irrespective of that, going by the reasonings given in para 5 of the impugned order, this Bench has considered all the arguments advanced, and has drawn its own conclusion. The issue before the Bench was whether the passengers attempted to pass through "walk through" channel, without declaration of gold and the Bench, on appreciation of evidence, accepted the first statements of the passengers as correct and acceptable, and has thus not accepted the plea that those statements were not worthy of credence as subsequently retracted.
Though it need not be further explained, it may be mentioned that what weighed with the Bench was that, the passengers were retracting only a part of the initial statement. They wanted the Bench to accept that part of their initial statement where they stated that they had approached some custom officers, but because of language problem, could not properly understand the instruction, and put their bags for screening, but wanted that the other part, where they admitted to have brought the gold for one Mr. Kutty, to be ignored as not correct and then wanted the Bench to accept their subsequent statement claiming the gold in themselves and production of purchase bill as genuine. This Bench, however, did not feel convinced and accepted the initial statement to hold that the gold was brought for one Mr. Kutty.
12. Assuming but not accepting that some portion of the second statements of the passengers was overlooked, and the panchnama was taken as not challenged, that does not have any material bearing on the conclusion drawn, which is based on the other evidence, and particularly on the circumstances as indicated hereinabove, so as to invoke the provisions of Section 129B(2) of the Customs Act Here is not the case where some evidence is totally ignored, and even if the party feels that there is im proper appreciation of evidence, the remedy does not lie in invoking provisions of Section 129B(2) of the Act.
13. The applicants passengers have in their application, virtually re-argued the entire appeals and have attempted at submitting that the entire order be reviewed on practically the same set of arguments which were advanced and con -sidered by the Tribunal. However, such a review is not provided for, and hence the same cannot be considered.
14. Going through the entire application, therefore there does not appear any ground to order re-hearing for rectification of the Order No. 256-257/93-WRB dt. 1.3.1993 of this Bench, and hence both the applications are rejected.
15. As regards Misc. Application Nos. C/130/93 and C/132/93 Bom, both relate to the order made by this Bench, referring two issues (one each of those formulated by either side) on the plea that those questions are not in confirmity with the factual position. Practically the same arguments as advanced while seeking rectification in the order in the appeal passed by this Bench, have been advanced. This Bench has held that those issues do arise out of the order passed by the Bench, and the applications alleged to be the one for rectification of mistake are nothing else but seeking review of those orders. Neither the grounds raised nor the submissions made are convincing enough to hold that the Bench has overlooked any factual position. The reasons given for rejection by the other two similar application in relation to the orders passed in the appeal, would also stand applicable to these two applications. Both these applications therefore deserve rejection and are rejected.
16. The Collector of Customs, vide C/Misc-117/93 and C/Misc-118/93 has requested for grant of stay against the implementation of the Order No.256-257/93-WRB dt. 1.3.1993 of this Bench, where the passengers are granted option vide Section 125 of the Act to pay fine in lieu of confiscation. It is contended that the applicability of the provision of Section 125 of the Act, to the set of facts here, itself is the subject matter in the reference to the High Court, as has been ordered vide this Bench Order No. 1315-22/93-WRB dated 29.7.1993 and if the passengers are permitted to take away the gold, then an irreparable loss would be cause, and the order that may be passed by the High Court on the question referred to them, would become infructuous.
17. Mr. Mondal, the ld. SDR, has submitted that though in ordinary circumstances, the order passed by the Tribunal has to be implemented, as no appeal is provided for against such order, it is within the powers of the Tribunal to grant stay against its operation till the issue of law raised, which has the direct bearing on the final order, is determined by the High Court. The Ld. SDR, has referred to the Supreme Court decision in Commissioner of Income Tax v. Bansi Dhar and Co. to plead that the Tribunal has inherent powers to grant such stay.
18. Mr. Sunder Rajan, the Ld. Consultant, has however opposed the prayer and has submitted that there is no provision in the statute, which empowers the Tribunal to grant such a stay and has referred to the decision of this Bench, in Snail Spanners (India)v. Collector where this very point is considered and negatived.
The Ld. consultant has also referred to the Supreme Court decision in Nawabganj Sugar Mills v. Union of India AIR 1971 Supreme Court 1152.
19. Considering the facts and circumstances, as also the ground which has weighed with the Tribunal, while passing the order No 256-257/93-WRB dt. 1.3.1993 as also the fact that the gold has been recovered from the passengers and also considering the view expressed by this Bench (Single Member) in Re: Snail Spanners (supra) this does not appear to be a case, where the entire case law on the subject be re-examined, though it is felt that the department should not be put to any disadvantageous position, if in case the question referred to the High Court, is answered in their favour. Under the circumstances, it is directed that the Department may give effect to the order passed by this Bench but may require the passengers to furnish bank guarantee remaining valid till the final determination of the issue now raised and till expiry of six months thereafter to the extent of the import value of the subject gold for its due return or to pay amount equivalent to the import price as on the date of import in case the question referred to the High Court is determined against them.
Application No. C/Misc-117/93 and C/Misc-118/93 Bom are disposed of accordingly.