Customs, Excise and Gold Tribunal - Calcutta
M/S Cool Home Co. (P) Ltd. vs C.C.E., Calcutta-I on 10 August, 2001
Equivalent citations: 2001(138)ELT587(TRI-KOLKATA)
ORDER
Archana Wadhwa
1. The present Miscellaneous Application filed by the appellant(s) points to certain mistake, which according to the appellants, had crept in the Tribunals's Order No.A-2005/Cal-2000 dated 6.12.2000 vide which the demand of duty of Rs.13,80,426.50 (rupees thirteen lack eighty thousand four hundred twenty six and paise fifty only) was confirmed against the appellants along with the confirmation of demand of duty of Rs.2,44,440.00(rupees two lac forty four thousand four hundred forty only)and Rs.1,69,956.00 (rupees one lac sixty nine thousand nine hundred fifty six only). However, the appellants argument as regards confirmation of demand of duty of Rs.4,04,442.77 by denying them the Modvat credit was accepted and the matter was remanded to the Adjudicating authority for fresh decision.
2. Shri J.P. Khaitan, learned Advocate appearing before us argued on the various issues and submitted that the basis for confirmation of demand of duty of about Rs.13 lac against the appellants as adopted by the Tribunal was not correct and submits that the chart annexed to the Show-cause Notice relied upon by the Tribunal was not reflecting the total value of the airconditioners as charged by the appellant from his customer but the same reflected the assessable value. The Tribunal has wrongly considered the said table as reflecting the total price of the airconditioners received by them as it observed that there was wide variations in the value of the airconditioners during each financial years. As such he submits that this is a mistake in the said order of the Tribunal for which the Order should be recalled and reheard. Similarly, a number of other points have also been raised as regards the confirmation of demand of duty of Rs.2,44,440.00 and Rs.1,69,956.00. It has also been submitted that the amount of Rs.4,04,443.77, which has been remanded to the adjudicating authority for de novo decision is already included in the duty demand of Rs.13.80,427.00 and as such the said demand of duty, as confirmed by the Tribunal should be reduced by the amount of Rs.4,04,443.77, which has been remanded.
3. After hearing Shri V.K. Chaturvedi, learned SDR for the Revenue we find that the appellants in the said Miscellaneous Application has reiterated the same very ground which were the subject matter of the appeal. It is well settled principles of law that appellants cannot seek review of the order under garb of the rectification of the mistake. The error to be rectified under the provisions of Section 35C(2) has be an error apparent on the face of the records and not the one which requires long drawn process of argument from both sides so as to arrive at a decision. We find that the appellant in the present application is challenging the legality and the correctness of the decision of the Tribunal arrived at against them which is not permissible, inasmuch as the Tribunal does not have any power to review its own decision. However, we find that vide said order an amount of Rs.13,80,426.50 was confirmed by the Tribunal and their appeal as regards the rejection of Modvat credit of R.4,04,443.77 was remended to the Adjudicating authority for fresh decision. We also note from the para 11 of the Tribunal's decision that the observation made by the adjudicating authority in para 5.2 of the order has been considered wherein he has held that the said amount has not been available to the appellants and having been rightly adjusted in the value while determine the duty liability of the notice. As such it becomes clear that the said amount has already been included in the duty of Rs.13.80,426.50 which has been confirmed against the appellants on the findings of the clandestine removal and undervaluation. Accordingly, the duty demand confirmed against the appellant is required to be reduced by an amount of Rs.4,04,443.77, the confirmation of which has already been set aside by the Tribunal and the matter remanded to the original Adjudicating authority. Accordingly, we allow the ROM application to the extent that the quantum of duty confirmed against the appellants would be reduced by an amount of Rs.4,04,443.77 which stands set aside by the Tribunal's order under consideration. But for the above modification of the said order we reject the Miscellaneous Application on the other points.
(Pronounced)