2002 (12) TMI 87 - SC - Central Excise

Supreme Court Restores Order, Clarifies Rectification Scope under Section 35C(2) (2)

COMMISSIONER OF CENTRAL EXCISE, CALCUTTA Versus ASCU LTD.

The Supreme Court allowed the appeal, restoring the original order dated 24th July, 1998. The Court clarified the limited scope of rectification under ... Application for rectification Held that:- In this case, admittedly while passing the order dated 24th July, 1998, apart from the reports, reliance had also been placed upon the literature of the respondents themselves. The Judicial Member notes that reliance had been placed upon this literature. Judicial Member therefore records, as noted above, that the Tribunal may again come to the same conclusion. If that be so, then it is clear that there is no mistake apparent on the record. In such a case there can be no rectification under Section 35C(2). We, therefore, set aside the impugned order and restore the original order dated 24th July, 1998. Issues:1. Whether the respondents were liable to pay duty and penalty for not disclosing manufacturing of densified wood.2. Whether the Customs, Excise & Gold (Control) Appellate Tribunal (CEGAT) correctly held that the respondents were manufacturing densified wood.3. Whether the Tribunal had the power to rectify an order under Section 35C(2) of the Central Excise Act, 1944.4. Whether the Tribunal's reliance on certain reports and literature constituted a mistake apparent from the record justifying rectification.Analysis:Issue 1: The Commissioner initially held that the respondents were not manufacturing densified wood and thus not liable to pay duty. However, CEGAT later determined that the respondents were indeed manufacturing densified wood, but had not suppressed any material or misstated any fact, limiting the Department's period for duty determination.Issue 2: The respondents sought rectification under Section 35C(2) based on the Tribunal's reliance on certain reports and literature. The Tribunal's Vice President viewed this as a review application, which was not permissible as the Tribunal lacked review powers. However, the Judicial Member opined that reliance on the reports constituted an error apparent on the record, warranting rectification.Issue 3: The Tribunal's power under Section 35C(2) is limited to rectifying apparent mistakes from the record and not for review purposes. The final decision must not be based on material that is irrelevant or inadmissible. In this case, the Tribunal's reliance on multiple materials, including the respondents' literature, did not constitute a mistake apparent from the record.Issue 4: The Judicial Member's observation that the Tribunal might reach the same conclusion without the contested reports indicated that the reliance did not result in a mistake apparent from the record. Consequently, the original order dated 24th July, 1998 was reinstated, and the appeal was allowed with no costs.Final Decision: The Supreme Court allowed the appeal, restoring the original order dated 24th July, 1998. The Court clarified the limited scope of rectification under Section 35C(2) and emphasized that a decision based on multiple materials does not constitute a mistake apparent from the record. Additionally, the Court addressed the withdrawal and restoration of civil appeals related to the case.