2020 (1) TMI 422 - HC - Central Excise

Court Upholds Tribunal's Remand Decision, Allows Rectification Application

The High Court upheld the decision of the Customs, Excise and Service Tax Appellate Tribunal to remand the case to the adjudicating authority for ... Rectification of mistake - power of appellate tribunal to rectify mistake - time limitation - Section 35G of the Central Excise Act, 1944 - Section 9D of the Act of 1944 - HELD THAT:- Section 35C(2) of the Act of 1944 however vests the Appellate Tribunal with the power of rectifying any mistake apparent from the record and amending any order passed by it. No doubt, this power requires to be exercised within six weeks from the date of the order - the certified copy of the order under appeal was furnished to the appellant-assessee on 19-3-2019 and therefore, the six months period reckoned from that date expired on 18-9-2019 and that was the date on which this appeal was preferred. The Tribunal would be well within its powers in entertaining an application under Section 35C(2) of the Act of 1944 for rectification of the order, if warranted on facts - Appeal disposed of permitting the appellant-assessee to submit an application under Section 35C(2) of the Act of 1944 before the Tribunal within one week from the date of receipt of a copy of this order. Issues:Appeal under Section 35G of the Central Excise Act, 1944 questioning the final order passed by the Customs, Excise and Service Tax Appellate Tribunal regarding denial of cross-examination opportunity, remand to adjudicating authority, suggestion for remand by appellant's counsel, power of rectification under Section 35C(2) of the Act, timeline for exercising rectification power, disposal of appeal permitting application under Section 35C(2) for rectification.Analysis:The appeal before the High Court under Section 35G of the Central Excise Act, 1944 challenged the final order of the Customs, Excise and Service Tax Appellate Tribunal related to the denial of an opportunity for cross-examination. The Tribunal had set aside the Order-in-Original and remanded the matter to the adjudicating authority to comply with the legal precedents set by the Punjab and Haryana High Court and the Chhattisgarh High Court regarding Section 9D of the Act of 1944. The appellant contested this remand, arguing that it was unjustified. However, the Tribunal noted in its order that the appellant's counsel himself suggested the remand to follow the provisions of Section 9D. The High Court emphasized that once the Tribunal records events during the hearing, it must be accepted as fact, and the Court cannot disregard such statements.In considering the power of rectification under Section 35C(2) of the Act of 1944, the High Court highlighted that the Tribunal has the authority to rectify any apparent mistake in its order within six weeks from the date of the order. The certified copy of the order was provided to the appellant on a specific date, and the appeal was filed within the required timeline. Therefore, the High Court concluded that the Tribunal would be justified in entertaining an application for rectification if necessary.Consequently, the High Court disposed of the appeal by allowing the appellant to submit an application under Section 35C(2) before the Tribunal within a week from receiving the order. The Tribunal was directed to assess the plea for remand made by the appellant's counsel and make appropriate decisions based on the merits. The High Court also ordered the closure of any pending miscellaneous petitions in light of this final decision, with no costs imposed.