Customs, Excise and Gold Tribunal - Delhi
Shri Siri Ram Bansal vs Collector Of Customs on 9 February, 1987
Equivalent citations: 1988ECR265(TRI.-DELHI), 1989(41)ELT308(TRI-DEL)
ORDER M. Santhanam, Member (J)
1. C/ROM/No. 30/86-A has been filed by Sh. Siri Ram Bansal and C/ROM/No. 37/86-A has been filed by Sh. N.S. Bhatnagar.
2. As common question of facts and law are involved in both these applications they were heard together and are being disposed of by this common order.
3. A brief narration of the prior events would be necessary in order to assess merits of the contentions raised by the applicants.
4. The two applicants imported two Toyota Carona 1600 DLX Sedans. They presented the manufacturer's invoice at the time of the assessment. The Assessing Authority accepted the invoice value and after adding freight, insurance and landing charges to the FOB value stated in the invoice, determined the duty payable. The claim of the applicants to 15% discount on the manufacturer's invoice was rejected by the Assistant Collector. Their appeals to the Collector of Customs, Bombay also failed. They moved the Tribunal alongwith two other. Appeal Nos. 379/84A, 357/84A (filed by Shri N.S. Bhatnagar) and 2176/83A & 52/84A (filed by Sh. Siri Ram Bansal) were heard together and orders were passed in Order Nos. 24 to 27/A dt. 15-1-1985. In the Memorandum of Appeal and in the course of the arguments it was urged that Section 4 of the Central Excise Act refers to the price at place of removal as assessable value and in this case, the car having been removed in Tokyo (Japan), the insurance, freight and landing charges should not be added. In paragraph 8 of the Order, the Tribunal rejected the contention. In paragraph 9 the Tribunal has pointed out that the price at which the goods were delivered at the point of landing in India would be relevant and not the price at which the transactions took place in Tokyo. When the issue regarding the discount of 15% was raised, the Tribunal held in paragraph 10 that the discount was rightly rejected. The Tribunal has pointed out that "An unimpeccable document like the invoice issued by the manufacturer himself is available and there cannot arise the question of any other document on the basis of which an assessable value has to be computed in respect of imported goods." In regard to the assessment of the Air-conditioner and Radio Stereo alongwith the car, the Tribunal in paragraph 11 has indicated that the assessment of these items on merits was correct. The claim for depreciation was disallowed. The appeals were rejected.
5. The applicant thereupon filed an application for rectification of mistake (ROM No. 11/85A). In order No. 24/86A dated 24-2-1986 the Tribunal rejected the application holding that the rectification of an error was restricted merely to a patent or apparent mistake on the face of the record and that the points that were sought to be canvassed were something which could be established only by a long drawn process of reasoning especially on points on which there existed two opinions.
6. The applicants again moved the Tribunal at another application for rectification in ROM No. 4/86A. In Misc., Order Nos. 90/93/86 the Tribunal considered the application and rejected the same as being totally devoid of merits and vexatious. The orders were passed on 7-5-1986.
7. ROM 30/86A has been filed on 8-9-1986 and ROM No. 37/86A on 27-101986. It is averred in the applications that all the mistakes alleged in the previous applications and resulting in the passing of the earlier orders be held apparent from the record and the basic order be amended and duty charged be ordered to be refunded together with reliefs due in law.
8. We have heard Sh. Siri Ram Bansal, Advocate who adduced elaborate arguments regarding the merits of the applications. Sh. R.P. Sharma, JDR represented the department and made his submissions.
9. To cut a long matter short, the grievance of the applicants is that the Tribunal in the basic order did not consider certain material aspects which has resulted in an erroneous appreciation of law and facts. The main grounds alleged are :
(i) the principles of "Promissory Estoppel" were enunciated by the Hon'ble Supreme Court in the case of Union of India v. Godfrey Philips India Ltd. and Ors. [1985 (22) E.L.T. 306]. It is urged that the departmental instructions for determining the valuation at list price published in the World Car Price Book less Trade Discount of 15% was accepted in the case of Miss Maitorama Bhatnagar. There should be equality before law guaranteed under the Constitution and the question of Promissory Estoppel would arise;
(ii) the value should have been fixed under Section 14(1)(a) of the Customs Act or Section 14(1)(b) with reference to Section 3(1) and Section 3(3) of the Customs Tariff Act read with Customs (Export of Tea on Consignment Account to United Kingdom), Valuation Rules. Under those provisions, the duties are to be equal to excise duty leviable on like goods manufactured in India components or ingredients employed in the manufacture of such like goods. Under Section 4 in order to determine the value at place of removal, the Trade discount, Transportation expenses etc. have to be deducted. Rule 3 and Rule 7 of the Valuation Rules, 1963 and Customs (Export of Tea on Consignment Account to U.K.), Valuation Rules, 1968 prescribed allowances of all expenses from the auction sale proceeds inclusive of freight, insurance and Trade Discount. The Tribunal has not considered this aspect. The Tribunal has ignored the unrebutted affidavit filed in the proceedings;
(iii) the departmental circular providing for 15% discount would be binding and the valuation should have been done at the list price in the World Car Price Book less trade discount of 15%; and
(iv) The Tribunal has also not provided for the depreciation of the accessories.
10. Shri Bansal advanced detailed and exhaustive arguments on each of the above to substantiate his case.
11. Shri R.P. Sharma, JDR submitted the following :
(i) there is no question of promissory estoppel because the applicants produced the manufacturer's invoice and the department acted upon the same. In the case of Miss Manorama Bhatnagar, the department acted on general practice in the absence of the manufacturer's invoice;
(ii) the Collector, as well as the Tribunal did not think it necessary to consider the Valuation Rules because Section 14(1)(b) will not be applicable if resort to Section 14(1)(a) is available. The manufacturer's invoice value was accepted by the department in the absence of any plea or proof that the applicants had paid lesser amount;
(iii) the question of according discount would not arise because the invoice price was available; and
(iv) there was no proof that the accessories were compulsorily supplied and the assessment was made without there being any necessity for providing depreciation.
11 A. In general the JDR argued that the applicants want re-assessment of the entire evidence and there is no patent or apparent mistake.
12. From the records, it is seen that Sh. Bansal has collected a copy of the basic order on 29-1-1985. The learned counsel stated that he has preferred an appeal before the Hon'ble Supreme Court and that it is pending admission.
13. With this background, we have to find out whether these applications should be allowed. It is well settled that under 129B(2), the Appellate Tribunal may at any time within four years from the date of order with a view to rectify any mistake apparent from the record amend any order passed by it. The term "mistake" apparent from the record indicates that it should be something which appears to be ex-fade erroneous and is incapable of argument or debate. The power to rectify a mistake is undoubtedly a limited power. It is not a power of revision or review but restricted to correct only those mistakes which are apparent from the record. It is no doubt true, and the nature of the power would indicate that a quasi-judicial authority should in the interest of justice exercise the same, when a mistake apparent from the record is brought to its notice by a person concerned with or interested in the proceedings. But under the garb of a rectification application, it is not open to a party to avail it as a further chance of re-arguing the matter or calling upon the Tribunal to review the basis of the decision. Such a course would be beyond the scope of an application for rectification. As set out above, the contentions raised by the applicants are on the basic merits of the orders and by any stretch of imagination do not attract the provisions of a rectification application. At the risk of repetition, we must say that all the points set out by the learned counsel have been dealt with in the Orders dt. 15th Jan., 85. The alleged "mistakes" were reiterated in the earlier applications for rectification and the Tribunal after careful consideration held that there were no mistakes to be rectified. All the contentions raised by the applicants may fall within the realm of an appellate forum which forum is entitled not only to consider the merits of the pleas but also scrutinise the correctness of the decision of the lower forum in regard to the contentions raised. The "mistakes" repeatedly urged by the applicants were the contentions raised in the main appeals and the Tribunal has taken a particular view. It may be argued that they are debatable conclusions. But rectification applications are not intended for reopening a decision or calling upon the Tribunal to revise the decision in the light of the arguments advanced by the learned counsel. The Tribunal has in the main order held at the prices at which the goods were delivered at the point of landing in India was relevant and not the price at which the transactions took place in Tokyo. The adding of freight, insurance and landing charges was held to be correct. The claim for discount was rejected by the Tribunal for the reasons already slated. The Assessment of the air-conditioners and other accessories were upheld on merits. As rightly urged by the JDR, no promissory estoppel would arise.
14. We have devoted considerable care and attention in disposing of these applications despite the fact that some similar applications have been filed earlier more in our anxiety, that it would be our duty to exercise the power of rectification to aid the enforcement of a right of public or private action. But we are constrained to observe that our repented attempts to behold errors, if any, have not met with success, and we have no other alternative but to come to the same conclusion that these applications are totally devoid of substance, and, merit nothing but rejection.