Deleted excise confiscation provision could not support a post-deletion notice, and the omission was rectified as an apparent error.

Confiscation of land, plant, building and machinery under Rule 173Q(2) of the Central Excise Rules, 1944 was not legally sustainable because the provision had been deleted before the show cause notice was issued. The post-deletion notice could not support confiscation under an omitted rule, and the earlier order's failure to record any finding on that unsustainable confiscation was treated as an obvious mistake apparent from the record. Rectification proceedings were therefore available to correct the omission, and the confiscation was annulled.

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Issues: Whether confiscation of land, plant, building, machinery and similar assets could be sustained under Rule 173Q(2) of the Central Excise Rules, 1944 after its deletion, and whether the omission to record a finding on that confiscation could be rectified in ROM proceedings.

Analysis: Rule 173Q(2), which provided for confiscation of land, plant, building, machinery and similar assets, stood deleted with effect from 12-5-2000 under Notification No. 38/2000. The show cause notice proposing such confiscation was issued in 2001, after the deletion, and therefore the proposal itself was not legally sustainable. Since the final order had not recorded any finding on this confiscation, the omission constituted an obvious mistake apparent from the record and could be corrected in rectification proceedings.

Conclusion: Confiscation under Rule 173Q(2) could not be sustained and was set aside. The rectification application was allowed in favour of the assessee.

Final Conclusion: The Tribunal corrected the omission in the earlier order and annulled the confiscation of land, plant, building and machinery, holding that the deleted provision could not support the post-deletion notice.

Ratio Decidendi: A confiscation proposal under a provision deleted before issuance of the show cause notice is legally unsustainable, and a failure to record a finding on such an unsustainable confiscation may be rectified as an error apparent from the record.

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