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Shri Jogesh Kumar Bhimsarya v. Customs, Excise And Gold (Control) A.T., New Delhi And Other - WRIT TAX No. 417 of 2002  RD-AH 1121 (25 April 2005)
CIVIL MISC. WRIT PETITION NO. 417 of 2002
Shri Jogesh Kumar Bhimsarya, R/o Bank Road Bhairwa, Nepal.Petitioner.
Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi & another. .... Respondents
Hon'ble Rajes Kumar, J.
In the present writ petition, petitioner has challenged the orders dated 06.05.1999 and 12.11.2001 passed by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi.
Brief facts of the case are that the petitioner was bringing 420 quintals garlic alleged to have been purchased in Nepal after storing them in re-usable sacks in India. When the said consignment was in transit, it was intercepted by the Custom authorities and was seized mainly on the ground that the garlic in question was of a Chinese origin. The inference that the said garlic was of a Chinese origin was drawn on the basis, (1) sack in which the garlic was stored contained Chinese description and trade information was received from petty trader at Gorakhpur that garlic are not grown at Nepal and secondly, Sri Yogesh Kumar Bhimsarya gave statement that garlic was of Chinese origin. In the adjudication proceeding, Commissioner of Customs (P), Lucknow vide its order dated 8th March, 1999 confiscated the goods and also confiscated trucks which were being used for the transportation of said garlic and also imposed penalty on Sri Yogesh Kumar Bhimsarya. Against the order of the Commissioner Customs, petitioner filed appeal before the CEGAT. CEGAT vide order dated 16.04.1999 confirmed the confiscation of the garlic and has reduced the amount of penalty levied on the petitioner to Rs. one lac. Thereafter, petitioner filed miscellaneous application on the ground that the material evidence, namely, Custom Certificates which were along with the goods and have been referred during the course of the hearing of the appeal on the ground that the Tribunal has failed to look into the certificate of origin dated 09.09.1994 filed at page 30 of the paper books, bill of entry no.1174 of 1994 dated 09.09.1994 filed at page no.25 of the paper book and failed to give any finding with regard to certificate issued by Nepali Custom Office in response to the query raised by the Indian Customs with regard to Chinese markings which was available at page 24 of the paper book. On the aforesaid grounds the petitioner sought to recall his full of mistake and the appeal be decided afresh on consideration of the aforesaid documents which are relevant for coming to the conclusion whether the alleged garlic were Nepal origin or Chinese origin. Said application has been dismissed by the CEGAT vide order dated 29.10.1991 which is impugned in the present writ petition.
Heard learned counsel for the parties.
Learned counsel for the petitioner submitted that while rejecting the miscellaneous application, claim of the petitioner that the Bench has failed to look into the certificate the origin dated 09.09.1994, failed to look into the bill of entry no.1174 of 1994 dated 09.09.1994 and failedto give any finding with regard to the certificate issued by Nepali Custom Office have not been disputed which were the part of the record still the Tribunal rejected the application on the ground that by means of this application, a request was made for reconsideration of the evidence on record and there was no mistake apparent on the face of record which is illegal. He submitted that the Tribunal being the last court of fact ought to have considered all the material evidences filed along with the paper book which was the part of the record for arriving to a conclusion and non-consideration of such evidence or documents amounts to mistake apparent on the record and as such the order was liable to be set aside. Learned Standing counsel relied upon the order of the Tribunal.
I find force in the argument of the learned counsel for the petitioner. Tribunal has not recorded any finding disputing the reason referred in the order for seeking rectification. Tribunal has rejected the application merely stating that the issue is nothing but a request for re-considering the evidence on record and no mistake apparent on record has been pointed out. Perusal of the order of the Tribunal shows that by deciding the appeal, Tribunal has not considered the certificate of origin dated 09.09.1994 which was filed at page 30 of the paper book, bill of entry no. 1174 of 1994 dated 09.09.1994 which was filed at page no.25 of the paper book and has not recorded any finding with regard to the certificate issued by the Nepali Customs Office in response to the query raised by the Indian Customs with regard to Chinese marking and if it is so, then it was a case of mistake apparent on record. It is settled principle of law that the Tribunal being a court of fact should examine and record the finding in respect of the documents which are being produced before it. Certificate of origin dated 09.09.1994 filed at page no.30 of the paper book, bill of entry no.1174 of 1994 dated 09.09.1994 which was filed at page no.25 of the paper book and the certificate issued by the Nepali Office which was filed at page no.24 of the paper book are not material documents for arriving to the conclusion whether the alleged garlic was of Chinese origin or Nepali origin particularly the statement alleged to be a confessional statement of the petitioner has been pleaded to have been taken under duress and pressure. In the circumstances, in my opinion, matter requires re-consideration by the Tribunal.
In the case of Laxmi Electronic Corporation Limited Versus CIT, reported in 188 ITR, 398, Division Bench of this Court while considering the scope of Section 254 (2) of the Income Tax Act, which is similar to the provisions under the Customs Act held as follows:
"We do not see the preposition in this decision mitigating against the power of the Tribunal to rectify its mistake. As said hereinabove, whether the Tribunal failed to decide the maintainability/merits of the appeal. It must be deemed to be a mistake apparent from the record which empowers Tribunal to reopen the appeal and rectify the same, if this so specified."
Reliance is also placed in the case of Income Tax Officer Versus ITA reported in 58 ITR, 634 (Alld), ITO Versus S.B. And Sons, reported in 75 ITR, 646, (Alld) and CIT Versus ITO, reported in 172 ITR, 158 (M.P).
As referred hereinabove, Tribunal has ignored to consider the material evidence which have been filed along with paper book which were the part of the record in arriving to the conclusion. Thus, there was a mistake apparent on the face of the record and the Tribunal ought to have been allowed the Misc. Application. In my view, in the interest of justice appeal be heard afresh.
In the result, writ petition is allowed. Order of the Tribunal dated 12.11.2001 in Misc. Order No.M/217/2001-NB/C/ROM/108/01-NB and order dated 6.5.1999 in appeal no. C/446-47,23/98-NB passed by the Tribunal are set aside. Tribunal is directed to decide the appeal afresh.
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