Customs, Excise and Gold Tribunal - Delhi
M/S. Shah Textile Mills Pvt. Ltd. vs Cce, Ahmedabad on 13 June, 2001
Equivalent citations: 2001(131)ELT619(TRI-DEL)
ORDER
P.S. Bajaj
1. These applications seeking rectification of mistake and recall of the Final Order No.392-393/2000-D dated 22.11.2000 have been moved by the appellants.
2. The appellants filed two appeals Nos.E/682.89-D against two orders dated 31.3.92 and 27.12.92 of the Collector (Appeals). The issue involved in those appeals was regarding the classification of the book binding cloth manufactured by the appellants. Both those appeals were disposed of by common final order dated 22.11.2000 referred to above and the matter was remanded to the adjudicating authority for fresh decision.
3. Through present applications the appellants have in fact sought rectification/recall of some of the observations made by the Tribunal in paras 8 and 13 of the Final Order.
4. The relevant observations in para 8 of the Final Order in respect of which rectification/recall had ben prayed by the appellants, read as:
There is no conclusive and definite evidence/material on the record to establish that the cotton fabric manufactured by the appellants had only back filling and not coating with the gum or starch so as to hold conclusively that it falls within the ambit of Chapter 52 of the CETA."
The observations recorded in para 13 of the Final Order read as:
"For want of requisite material or evidence before us it is difficult to decide the proper classification of the cotton fabric in question. The matter in our view deserves to be sent back to the adjudicating authority for getting the fabric retested/re-examined from the expert and thereafter to decide its classification afresh on the basis of that report and the other material which either side may like to produce before him."
5. The learned counsel has contended that the above referred obseervations in those two paras could not be recorded as there was no sufficient material on record to establish the classification of the product in question (book binding cloth) under Chapter 52 of the schedule appended to CETA. He has further contended in the face of the findings recorded in para 13 reproduced, above, the adjudicating authority will not be able to take into account the material/evidence already on record while deciding the issue of the classification of the product de novo. Therefore, these observations deserve to be recalled and if not clarified that the same will not influence the decision of the adjudicating authority.
6. On the other hand, the learned SDR had argued that there is no mistake apparent on the face of the record and as such the present applications of the appellants seeking rectification/recall of the impugned Final Order is misconceived and deserve to be dismissed.
7. We have heard both the sides and gone through the record.
8. The findings in para 8 of the order referred to above) had been recorded after making reference to the material on record and the submission made by the counsel. Similarly in para 13 the findings had been recorded, as in our opinion the material on record was insufficient to accept the plea of the appellants that their product was classifiable under Chapter 51 of the CETA.
9. In our view, no mistake of fact or law appears apparent on the face of the order for rectification. The fact that the findings recorded in the above referred paras are not to the satisfaction of the appellants, is no ground to recall the same. Through present applications, the appellants in fact want the recall of the final order itself, but the same is not permissible under the law.
10. No clarification of the findings recorded in para 13 of the Final Order referred to above is also required for want of any ambiguity therein. The matter had been sent to the adjudicating authority for deciding the classification issue afresh in accordance with law. His power and discretion in deciding the matter has not been in any manner limited/controlled or circumvented through those findings in para 13 or in another para of the impugned order by the Tribunal.
11. In view of the discussion made above there is no merit in these ROM applications of the appeellants. and the same are ordered to be dismissed.