1985 (5) TMI 160 - AT - Central Excise

Tribunal denies rectification request under Section 35C(2) - Errors not raised in original appeal

The Tribunal dismissed an application by M/s Shree Laxmi Textile Mills to amend an order under Section 35C(2) of the Central Excises and Salt Act. The ... Rectification Issues:1. Application for amendment of an order under Section 35C(2) of the Central Excises and Salt Act.2. Interpretation of the provision for rectification under Section 35C(2) of the Central Excises and Salt Act.3. Whether errors to be rectified should have arisen from a mistake apparent from the record.4. Grounds for claiming relief of rectification based on Trade Notice and a judgment of the Bombay High Court.5. Whether the application for rectification should be dismissed.Analysis:The judgment pertains to an application by M/s Shree Laxmi Textile Mills for amending an order dated 6-7-1984 under Section 35C(2) of the Central Excises and Salt Act. The applicants contended that duty should have been paid at Re. 1/- per kg. instead of Rs. 16/- per kg. based on a Trade Notice and a lower quantity cleared during the relevant period. Additionally, they relied on a Bombay High Court judgment. The Tribunal emphasized that errors to be rectified must be apparent from the record and not require extensive investigation. The Tribunal cited precedents to distinguish between powers of review/revision and rectification under Section 35C(2).The Tribunal noted that the grounds presented by the applicants were not raised during the initial appeal hearing, indicating that these grounds were not apparent from the record. The Tribunal highlighted that the Trade Notice referred to a different type of yarn than the one manufactured by the applicants. Moreover, the judgment of the Bombay High Court was subject to debate among different High Courts. The Tribunal, therefore, concluded that the grounds were debatable and not evident from the record, thus not falling under Section 35C(2) for rectification.In the judgment, the Tribunal referenced Chatturvedi and Pithi-serina's Income-tax Law, emphasizing that errors sought to be rectified should not result from a party's fault during appeal proceedings. Since the grounds for rectification were not raised during the original appeal, the Tribunal deemed the application ineligible for rectification. The Tribunal dismissed the application on the grounds that the errors were not apparent from the record and were not attributable to the Tribunal's oversight.In a separate judgment by Member H.R. Syiem, it was highlighted that no bench could hear an application seeking to amend an order passed by another bench. The judgment raised concerns about allowing parties to submit additional arguments post-order, potentially leading to numerous re-hearings and conflicting orders. Member Syiem emphasized that any modification to an existing order would imply the bench's acceptance of the application, even if ultimately rejected. The judgment concluded that such applications should not be entertained by a different bench and passed no order in this regard.The Editor's Comments addressed the condition for rectification under Section 35C(2), emphasizing that mistakes to be rectified should be apparent on the face of the record, irrespective of whether they are due to the Tribunal's error or a party's fault. The provision does not permit parties to seek rectification solely to re-argue their case. Mistakes attributable to the Tribunal's oversight, caused by a party's fault, fall within the purview of Section 35C(2) for rectification.