Sh. Krishan Madan And Another vs Deptt. Of Customs
2001 Latest Caselaw 485 Del

ORDER

Arijit Pasayat, C.J.

1. This is an application under Section 130-A of the Customs Act, 1962 (in short `Act'). The application relates to order in Misc. Case No.M/181/99-MB(DB) in Appeal No.C/609/93-NB, decided by the North Bench of the Custom, Excise & Gold (Control) Appellate Tribunal (in short "Tribunal") on 10th November 1994. Originally an application was filed before the Tribunal seeking reference of certain question, stated to be questions of law. The same was dismissed.The Court was moved in Customs Act Case No. 1 of 1996.By order dated 2nd September 1996, it was observed that out of the four questions proposed, no question of law was involved as regards three of them. So far as residual one is concerned, it was held that the same was a new question which cannot be raised for the first time. Thereafter an application was filed under section 129B(2) of the Act before the Tribunal seeking rectification of certain purported mistakes in the order of the Tribunal. By impugned order. Tribunal held that there was no mistake apparent from the record which required rectification.

2. In support of the application, it has been submitted that the Tribunal went wrong in analysing the factual position and also did not follow decision of the Apex Court. It is also submitted that the non-consideration of relevant materials constitutes an error apparent from the record.

3. We find that the Tribunal in the impugned order has dealt with various submissions made before it as regards alleged errors as claimed by the petitioner, which were noted to be as follows, as claimed by the petitioner:

"(a) that the request for re-examination of the watch movements was made which was not considered;

(b) That an affidavit was filed by Sh. D.N.Batra which does not find any mention in the final order of the Tribunal;

(c) That the seizure was made by the Police which takes away the effect of Section 123;

(d) That though Sh.Naveen Sahni's statement has been relied upon but this statement does not have any evidence value inasmuch as it was taken in front of police officers;

(e) That the goods did not carry any marking or name of country to indicate foreign origin of the goods."

4. Considering the various submissions vis-a-vis purported mistakes, Tribunal has come to the following conclusion:

"Head the rival submissions.Perused the case law.We find that the relevant paragraphs are 10 and 11 of the order.We find that the points raised have been taken into account without specifically mentioning the particular documents or the words.We find that the Tribunal has come to a particular conclusion with appreciation of evidence and held accordingly as indicated in paragraphs 10 and 11 of the order. The case law cited by the applicants are distinguishable as the facts of the cases are different.We also find that this Tribunal in the case of Padigal Sriramula (1995) (77) ELT 348 held that presumption under Section 123 of the Customs Act is not applicable when the seizure made not by the customs officer but by the Police. In the instant case foreign origin of the confiscated goods was indicated by Naveen Sahni in his statement.Some documents were produced subsequently which did not confirmed the identify of the confiscated goods.Sh. Batra in his statement also stated that the goods were not the same as they were supplied by him. Thus it was appreciation of evidence as a whole which led to the final conclusion as indicated in the order passed by the Tribunal."

5. Section 129B(2) of the Act, which deals with mistake apparent from the record, read as follows:

"129B. Ordersof Appellate Tribunal-

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(2) The appellate Tribunal may, at any time within four years from the date of the order , with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to appeal:

Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.

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6. A bare look at the language of Section 129B(2) makes it clear that a mistake apparent from the record is rectifiable. In order to attract the application of the provision,the mistake must exist and the same must be apparent from the record.The power to rectify the mistake however does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, a misunderstanding, a misconception. "Apparent' means visible; capable of being seen; easily seen; obvious; plain.A mistake which can be rectified under Section 129B(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in the provision makes it clear that only amendment to the order passed under Section 129B(1) is permissible where it is brought to the notice of the Tribunal that there is a mistake apparent from the record. In our view amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the petitioner intends to do in the present case is precisely the substitution of the order, which according to us is not permissible under the provisions of Section 129B(2) of the Act and therefore, the Tribunal was justified in holding that there was no mistake apparent from the record. Where an error is far from being self-evident, it ceases to be an apparent error. It is no doubt true that a mistake capable of being rectified under Section 129B(2) is not confined to clerical or arithmetical mistake which may be discovered by a complicated process of investigation, argument or proof.As observed by the Apex Court in Master Construction Co (P) Ltd. v. State of Orissa (1966)17 STC 360, an error which is apparent on the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law.Similar view was also expressed in Satyanarayan Laxminarayan Hedge v. Mallikarjun Bhavanapa 'tirumale. . It is to be noted that the language used in Orde XLVII, rule 1 of the Code of Civil Procedure, 1908 (in short "CPC" is different fro the language used in Section 129B(2) of the Act. Power is given to various authorities to rectify any mistake "apparent from record".In the CPC, the words are "an error apparent on the face of the records". The two provisions do not mean the same thing. The power of Tribunals under Section 129B(2) to rectify "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of "an error apparent on the face of the record". (see T.S.Balaram, ITO v. Volkart Brothers . Mistake is an ordinary word, but in taxation laws, it has a specific and special significance. It is not an arithmetical or clerical error alone that comes within its purview. It comprehends errors which,after a judicious probe into the record fro which it is supposed to emanate, are discerned. The word "mistake" is inherently indefinite in scope, as what may be a mistake from one may not be one for another.It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record.In order to attract the power to rectify under Section 129B(2) it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on the debatable point of law or disputed question of fact is not a mistake apparent from the record. The plain meaning of the word "apparent" in fact is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It therefore follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification.

7. It is to be noted that petitioner has proposed questions which are essentially linked with merits of the controversy raised before the Tribunal. Order passed by the Tribunal had become final and reference applications before the Tribunal as well as this Court have been rejected. The present application is in respect of the Misc.Case filed for rectification. Therefore the only question which can be decided in the present application is whether Tribunal was justified in holding that there was no mistake apparent from the record. When the purported mistakes whose rectification was sought for are considered in the background of legal principles set out above, the inevitable conclusion in that Tribunals' findings are purely factual and in order giving rise to no question of law.

8. Above being the position, this application is not maintainable. Dismissed.