Customs, Excise and Gold Tribunal - Delhi
National Rayon Corporation Ltd. vs Collector Of Customs on 3 February, 1993
Equivalent citations: 1993ECR544(TRI.-DELHI), 1993(67)ELT186(TRI-DEL)
ORDER N.K. Bajpai, Member (T)
1. This is an application under Section 129B (2) of the Customs Act, 1962 for rectification of mistake apparent from the record in Tribunal's Order No. 209/90-B2, dated 28th March 1990 by which the appeal of the appellant for classification of Hopkinsons Parallel Slide Valve as an "Isolating Valve" under Sub-heading 84.61(2) of the Customs Tariff in force at the time of import of the goods in June 1982 was rejected .The ground for rectification of mistake is the subsequent order of the Tribunal in the case of ACC-Babcock Ltd. v. Collector of Customs, Calcutta, [1992 (62) E.L.T. 116 (Tri.)]. This order is dated 10th April 1992 and the Larger Bench of the Tribunal held that globe and gauge valves were isolating valves classifiable under sub-heading 84.61(2). In their application, the applicants have submitted that in the Larger Bench decision, the Tribunal has laid down a different ratio of law contrary to one taken in the appellants' own case. Accordingly, relying on the following decisions, they have requested for rectification of the mistake by recalling its order and by granting a fresh hearing in the matter :-
(a) KB. Foams (P.) Ltd. v. Deputy Commissioner of Comml. Taxes (Karnataka) [1986 (62) STC 233]
(b) Dalmia Laminators, Calcutta v. Collector of Central Excise, Calcutta, 1991 (17) ETR 674
(c) S.A.L. Narayana Row, Comissioner of Income Tax v. Model Mills Nagpur Ltd. [1967 (64) LTR 67)]
(d) Nav Nirman P. Ltd. v. Commissioner of Income Tax -1988 ITR 574
2. Arguing on the application, Shri A.K. Jain, the learned Counsel submitted that in the Nav Nirman case (supra), the High Court had held as under :-
"It may be that in the circumstances of a given case, a mistake discovered in an order on the basis of a subsequent judgment of the High Court may be a mistake apparent on the record and ground for rectification. The subsequent decision of the High Court should, however, in such cases, be directly in point."
3. Shri Jain submitted that the function of the Parallel Slide Valves imported by the applicants was to isolate the boiler from the main header to prevent leakage of steam and, inasmuch as, the function of a valve has been held to be the deciding factor irrespective of the design or location for determining its character as an Isolating Valve, the applicants were entitled to rectification of the mistake in the order on the basis of this ratio alone. He also referred to the fact that globe and gauge valves were not described as isolating valves in the invoice in the case which came up before the Larger Bench. If, therefore, the ratio of the decision is applied to the present case, the applicants would become entitled to classification of their goods under Sub-heading 84.61(2) and this calls for a rectification of a mistake apparent from the record. Referring to paragraph 11A of the decision of the Larger Bench, Shri Jain submitted that the Bench itself has recorded a finding that Hopkinsons Valves were isolating valves.
4. Appearing for the Department, Shri M.S. Arora, the learned Departmental Representative submitted that the High Court had held in the Nav Nirman case (supra) that it may be that in the circumstances of a given case, a mistake discovered in an order on the basis of a subsequent judgment of the High Court may be a mistake apparent on the record and a ground for rectification. It was, therefore, necessary to first ascertain whether there was a mistake apparent from the record and then only, the question of any rectification could be considered. Such was not the case was clear from the fact that in its order the Tribunal held as under :-
"5. The submissions made in the appeal memorandum as well as in the hearing have been examined. The Bill of Entry description is "Hopkinsons Parallel Slide Valve" and so is the Invoice description and at the original and appellate stage before the Collector (Appeals) they have produced documents describing the same as "Stop valves". The learned Advocate was specifically asked during the hearing to give the function of each of these valves whether these were one and the same because the description varies. He, however, produced only the dictionary meaning of a valve wherein the word 'isolating' has been mentioned and also the extract from the boiler regulations. In that particular extract stop valve has also been mentioned and the particular extract does not help in stating that the valve imported is an isolating valve, by a mere reproduction of the requirement the appellants have not been able to prove their contention that they have imported an isolating valve. Further, the drawing produced does not make any mention of replacing by 8" isolating valve. It merely says 8" existing valve to be replaced by 8" Hopkinsons make valve. The Tariff Heading 84.61 refers to many types of valves, namaly isolating valves, non-return valves, safety valves, pressure reducing valves etc. etc. and these carry a rate of duty of 40% and of other valves not elsewhere specified carry a rate of 60%. Inasmuch as the valves imported by the appellants as per description of the Bill of Entry and the Invoice is Hopkinsons Parallel Slide Valve, it cannot be said to be covered by Chapter Heading 84.61(2)...."
(Emphasis added)
5. Shri Arora submitted that on the question of facts alone an adverse finding has been recorded against the applicants in the order of the Tribunal in which it was held that what the appellants had imported were not isolating valves ; they had also not been successful in indicating the function of the valves. It could not, therefore, be said that by a mere application of the ratio of the Larger Bench decision, a mistake was apparent from the record and, therefore, called for rectification. He also cited the following decisions of the Tribunal to support his arguments :-
(a) Siri Ram Bansal v. Collector of Customs. [1990 (49) E.L.T. 552]
(b) Entremonde Polycoaters Private Ltd., Nasik v. Collector of Central Excise Pune [1984 (18) E.L.T. 310]
(c) Metal Extruders (I) Pvt. Ltd., Bombay v. Collector of Central Excise, Bombay [1985 (19) E.L.T. 198]
(d) Smt. Prativa Rani Samanta v. Collector of Central Excise, Calcutta [1984 (15) E.L.T. 482]
(e) Sirpur Paper Mills Ltd., Sirpur v. Collector of Central Excise, Hyderabad [1986 (24) E.L.T. 49].
6. Replying, Shri Jain referred to para 4 of the order of the Tribunal in which their contentions raised before the Assistant Collector were recorded. He submitted that the location and function of the Hopkinsons Parallel Slide Valve being clear, by mere application of the ratio of the Larger Bench decision, they were entitled to rectification of the mistake and recall of the order.
7. We have carefully considered the application, the submissions made at the hearing and have perused the records. It is clear from para 5 of the order of the Tribunal that the appellants had not been able to prove their contention that what they had imported were Isolating Valves. Quite apart from the fact, whether the subsequent decision of the Tribunal (which was not a part of the record of the present case) could be made the basis for, what is being convassed before us, as a rectification of a mistake, the appellants had not succeeded in establishing on the basis of the facts that the valve imported by them was an Isolating Valve. In these circumstances, it would not be permissible to even think of applying the ratio. In this connection we can do no better than to refer to the decision of the Tribunal in the Sir-pur Paper Mills case (supra), the relevant portion of which is as under :-
"9. Applying the above principles to the facts of the present case, it is clear that what the applicants want this Tribunal to do now is to review its earlier decision, which has been found to be different from and contrary to the decision of a larger 5-Member Bench in an appeal decided at a later point of time. Evidently, the later decision could not have been available at the time the Tribunal disposed of the appeal which had been filed by the present applicants. Therefore, there could be no question of there being a mistake apparent on the record of the proceedings leading to Order No. C.9/1984, dated 9-1-1984 [1984 (16) E.L.T. 546 (Tribunal)] which disposed of appeal No. ED(SB) (T) A. No. 269/79-C filed by the present applicants.
10. What the applicants seek to achieve is quite clear. They want to take advantage of the later decision which, according to them, settles the issue in favour of the assessee, to be applied to their case, although their own appeal had been disposed of earlier in point of time..."
8. The learned Counsel has stated that in para 11A of its decision, the Larger Bench itself has recorded a finding that Hopkinsons Valves were Isolating Valves. We have carefully seen this portion of the decision and are unable to find any finding by the Larger Bench to that effect.
9. Therefore, we find that on facts alone, it cannot be said that there was any error in the order of the Tribunal which would call for rectification of the order in the light of the Larger Bench decision. What the applicants are seeking to achieve is exactly the same as what happened in the Sirpur Paper Mills case (supra). The Tribunal has clearly held that one cannot take advantage of the later decision of the Tribunal by moving an application for rectification. The application, therefore, fails and is rejected.