2009 (11) TMI 811 - AT - Central Excise

Tribunal rectifies oversight in final order, cites Finance Act 2005 for amendment.

The Tribunal acknowledged the oversight of an amendment to Rule 57CC of the Central Excise Rules, 1944, and the belated plea based on the amended ... - Issues:1. Oversight of amendment to Rule 57CC of the Central Excise Rules, 1944 by the Tribunal.2. Entertaining a belated plea based on the amended provisions of Rule 57CC(2).3. Consideration of a new case at a later stage of the proceedings.4. Application for rectification of mistake in the final order passed by the Tribunal.5. Applicability of retrospective provisions of the Finance Act, 2005 to the case.6. Recalling the final order due to a glaring mistake.Issue 1: Oversight of amendment to Rule 57CC:The Department filed an application pointing out an apparent mistake in the final order passed by the Tribunal due to the oversight of an amendment to Rule 57CC of the Central Excise Rules, 1944. The amendment under Section 82 of the Finance Act, 2005 allowed for the recovery of amounts payable under Rule 57CC(2) for a specific period, which was within the disputed timeframe of the case. The Tribunal's decision was based on the absence of a recovery mechanism under Rule 57CC(2), which was corrected by the retrospective amendment.Issue 2: Belated plea based on amended provisions:The Department invoked the amended provisions of Rule 57CC(2) through a belated application, which the Counsel for the respondent argued should not be entertained under Section 35C(2) of the Central Excise Act. The Counsel relied on a previous case law to support the contention that introducing a new case at a later stage is not permissible. However, the Tribunal found that the present case differed from the cited case as the final order was based on Rule 57CC(2) and the amendment was a crucial aspect overlooked during the initial proceedings.Issue 3: Consideration of a new case:The Tribunal distinguished the present case from the cited precedent, emphasizing that the final decision was solely based on Rule 57CC(2) and the recovery mechanism issue. The belated invocation of the retrospective provision of the Finance Act, 2005 was deemed necessary due to the glaring mistake in overlooking the amendment during the original proceedings.Issue 4: Application for rectification of mistake:The Department's application for rectification of the mistake in the final order was deemed valid, considering the significant impact of the overlooked amendment to Rule 57CC(2). The Tribunal acknowledged the error in the initial decision and concluded that the final order needed to be recalled for a fresh decision based on the amended provisions.Issue 5: Applicability of retrospective provisions:The retrospective provision of the Finance Act, 2005, which allowed for the recovery of amounts under Rule 57CC(2) for a specific period, was crucial in rectifying the oversight in the Tribunal's decision. The amendment provided a recovery mechanism that was not considered during the original proceedings, leading to the necessity of recalling the final order.Issue 6: Recalling the final order:In light of the glaring mistake in overlooking the amendment to Rule 57CC(2), the Tribunal decided to recall the final order and directed the Commissioner (Appeals) to reevaluate the issue in accordance with the law. The amendment to the law post the original decision necessitated a fresh consideration of the case to ensure a just outcome based on the revised provisions.This detailed analysis of the judgment highlights the oversight of the amendment, the belated plea based on the amended provisions, the consideration of a new case at a later stage, the application for rectification of mistake, the applicability of retrospective provisions, and the decision to recall the final order due to a glaring mistake.