M.A. Exports Ltd. Vs. Collector of Customs - Court Judgment

Excerpt:
1. by the present rom application, the applicants have contended that there have been two errors in the final order no. 27/95-c, dated 10-1-1995. shri r.s. dinkar, the learned advocate appearing for the applicants submits that the tribunal raised one point about leviable of additional duty of customs by classifying old and used tyres under sub-heading 4011.99 of the central excise tariff act, 1985; that this question 14/871 has been raised and not decided; that another question raised before the tribunal was whether the goods are eligible to be imported under ogl; that the tribunal held that the goods would fall under appendix 2(b) requiring an import licence; that the chief controller of imports and exports on 15th may, 1992 clarified that those items which were shifted earlier from restricted list from appendix 2(b) to appendix 3(a) are freely importable under the import export policy and therefore, there is a mistake apparent on the face of the record which needs to be rectified; that the ratio of the judgment of the hon'ble supreme court in the case of m/s. khandelwal metal and engineering works reported in 1985 (20) e.l.t. 222 has not been correctly applied to the facts of the present case. thus there was a mistake apparent and should be rectified.2. shri j.m. sharma, the learned dr opposing the application for rectification of mistake submitted that there is no mistake apparent on the face of the record and therefore, the rom application may be rejected.3. heard the submissions of both sides. we find that the tribunal had formulated three issues. the second issue was whether countervailing duty could be levied on the imported goods under chapter heading 4011.99. it has been alleged in the rom application that this question has been raised and not decided. we find that in para 11 the issue has been replied when the decision of the appex court in the case of m/s.khandelwal metal and engineering works cited supra was set out and in para 12 it was held that cvd shall be chargeable on the imported goods.thus there was no mistake insofar as this point is concerned.4. the other question challenged was whether the goods are eligible to be imported under ogl. we find that this issue was formulated, in para 7 and was discussed in para 10 wherein it was held that a specific licence was required for the goods and the goods could not be imported under ogl. thus there has been no mistake apparent on the face of the record. on the question whether the ratio of the decision of m/s.khandelwal metal and engineering works was correctly applied or not. we find that this is a question of appreciation of facts and cannot be treated as a mistake. in view of the above discussions, we find that there was no mistake apparent on the face of the record, therefore, rom application is rejected.

Judgment:
1. By the present ROM application, the applicants have contended that there have been two errors in the Final Order No. 27/95-C, dated 10-1-1995. Shri R.S. Dinkar, the learned Advocate appearing for the applicants submits that the Tribunal raised one point about leviable of Additional Duty of Customs by classifying old and used tyres under sub-heading 4011.99 of the Central Excise Tariff Act, 1985; that this question 14/871 has been raised and not decided; that another question raised before the Tribunal was whether the goods are eligible to be imported under OGL; that the Tribunal held that the goods would fall under Appendix 2(B) requiring an import licence; that the Chief Controller of Imports and Exports on 15th May, 1992 clarified that those items which were shifted earlier from restricted list from Appendix 2(B) to Appendix 3(A) are freely importable under the Import Export Policy and therefore, there is a mistake apparent on the face of the record which needs to be rectified; that the ratio of the judgment of the Hon'ble Supreme Court in the case of M/s. Khandelwal Metal and Engineering Works reported in 1985 (20) E.L.T. 222 has not been correctly applied to the facts of the present case. Thus there was a mistake apparent and should be rectified.

2. Shri J.M. Sharma, the learned DR opposing the application for rectification of mistake submitted that there is no mistake apparent on the face of the record and therefore, the ROM application may be rejected.

3. Heard the submissions of both sides. We find that the Tribunal had formulated three issues. The second issue was whether countervailing duty could be levied on the imported goods under Chapter Heading 4011.99. It has been alleged in the ROM application that this question has been raised and not decided. We find that in para 11 the issue has been replied when the decision of the Appex Court in the case of M/s.

Khandelwal Metal and Engineering Works cited supra was set out and in Para 12 it was held that CVD shall be chargeable on the imported goods.

Thus there was no mistake insofar as this point is concerned.

4. The other question challenged was whether the goods are eligible to be imported under OGL. We find that this issue was formulated, in Para 7 and was discussed in Para 10 wherein it was held that a specific licence was required for the goods and the goods could not be imported under OGL. Thus there has been no mistake apparent on the face of the record. On the question whether the ratio of the decision of M/s.

Khandelwal Metal and Engineering Works was correctly applied or not. We find that this is a question of appreciation of facts and cannot be treated as a mistake. In view of the above discussions, we find that there was no mistake apparent on the face of the record, therefore, ROM application is rejected.