COLLECTOR OF C EX Vs. SWAMINATHAN AND SONS

JUDGEMENT

(1.) SINCE the above matters are interconnected and arise out of the common impugned order of the Tribunal dated 4-9-86 in Order No. 713/86, they are taken up together and disposed of by a common order.

(2.) G/ROM/92/88 is an application under Section 81-A(2) of the Gold (Control) Act, 1968, hereinafter referred to as the 'Act' purporting to be one for rectification of a mistake in the impugned order of the Tribunal referred to supra.

(3.) SHRI L. Suganchand Jain, the learned Counsel for the Respondent submitted that the scope of the rectification application under Section 81-A(2) of the Act is very limited only to the extent of correcting or rectifying errors apparent on the face of the record. When the appeal was disposed of resulting in the impugned order of the Tribunal dictated in the open Court in the presence of the parties, no plea was raised about the existence of the firm and even today no documentary evidence about the existence of the firm as understood within the meaning of Section 2(h) of the Act has been produced before the Tribunal and, therefore, there is absolutely no mistake at all either in the impugned order or in the finding of the Tribunal much less any error apparent on the face of the record warranting rectification. The learned Counsel further urged that reference to the partnership deed alleged to have been entered into between Selvarajan and Ramanujam on 29-3-82 is irrelevant and inadmissible when the Tribunal is in seisin of a rectification application. The learned Counsel further submitted that adducing or reception of fresh evidence even at the appeal stage is conditioned by Rule 23 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982, under which the parties would not be entitled to produce any additional evidence and it is only if the Tribunal is of the opinion that any document should be produced, the Tribunal, for reasons to be recorded, may allow such documents to be produced as evidence. There- ** fore, even when the Department is precluded of the said rule from adducing additional evidence or production of a new document at the appellate stage suo motu; a fortiori the Department would be precluded from adducing and placing the reliance on a new document at the time of filing a rectification application under Section 81-A(2) of the Act. The learned Counsel further urged that a firm is a recognisable legal entity for the purposes of the Gold (Control) Act, 1968. though it cannot be a juristic person under the General Law and the Department in the present case, as a matter of fact, granted a licence under the Act in the name of two individuals viz. Servarajan and Ramanujam and having granted a licence under the Act, the licensee alone can be proceeded against and an internal arrangement between the said two persons to form a partnership firm would not convert such a firm into a licensee under the Act, notwithstanding the fact that they have held out themselves as a firm before the authorities who also accepted the same. , The learned Counsel in this context placed reliance on the ruling of the Madras High 1 Court in the case of Kathiresan Pillai end Others v. Ac Additional Collector of Central Excise, Madurai-2 reported in 1989 (19) ECC (14). Finally, the learned Counsel, SHRI Suganchand Jain, submitted that the firm Swaminathan & Sons was admittedly dissolved on 16-8-84 and was not in existence thereafter and, therefore, imposition of penalty by an order dated 4-4-86 nearly after two years after the firm ceased to exist and had become defunct is patently unsustainable in law.