1994 (8) TMI 91 - AT - Central Excise

Tribunal dismisses rectification application under Central Excises Act due to lack of evident mistake

The Tribunal dismissed the application for rectification under Section 35C(2) of the Central Excises and Salt Act, 1944. The dispute centered on the third ... Rectification of mistake Issues:Application for rectifying a mistake apparent from the record under Section 35-C(2) of the Central Excises and Salt Act, 1944.Analysis:The applicants filed an application seeking rectification of a mistake apparent from the record in a Final Order dated 11-10-1993 passed by the Tribunal. The main contention was that the third Member, to whom the matter was referred due to a difference of opinion, erred in admitting fresh evidence related to the marketability of the product. The applicants argued that the third Member exceeded his jurisdiction by considering new evidence, specifically an invoice and bill of entry, which led to a mistake in the order. They cited legal precedents to support their claim that the third Member's scope was limited to the points of difference between the original two Members. The Judicial Member and Technical Member had both found that the goods in question were not marketable, and the admission of new evidence was deemed inappropriate. The applicants emphasized that the mistake in admitting fresh evidence warranted rectification based on legal principles and precedents.The Departmental Representative, on the other hand, contended that the evidence admitted by the third Member was relevant to the issue at hand and did not constitute a mistake apparent from the record. It was argued that the conclusion reached by the third Member would have been the same even without the additional evidence, as it was based on technical literature and previous Tribunal decisions. Reference was made to a recent Supreme Court judgment highlighting that marketability is a factual determination and the actual marketing of goods is not a prerequisite. The Departmental Representative maintained that the third Member acted within his jurisdiction in considering the evidence and that rectification was not necessary.Upon considering the arguments presented, the Tribunal delved into the legal framework governing the rectification of mistakes under Section 35C(2) of the Act. It was noted that not all mistakes can be rectified, and only those that are apparent from the record qualify for rectification. Citing a Supreme Court ruling, the Tribunal clarified that a mistake apparent from the record must be obvious and patent, not subject to differing interpretations. The Tribunal acknowledged the lack of clarity regarding the third Member's authority to admit fresh evidence in such cases. Given the absence of definitive legal guidance on this issue, the Tribunal concluded that the mistake alleged by the applicants was not apparent from the record. Consequently, the application for rectification was dismissed, emphasizing the need for an unequivocal error for rectification under the law.In summary, the judgment revolved around the dispute regarding the admission of fresh evidence by the third Member in a Tribunal decision and whether this constituted a mistake apparent from the record warranting rectification. The legal arguments put forth by both parties, supported by relevant case law, were carefully analyzed by the Tribunal to determine the applicability of rectification under the Central Excises and Salt Act, 1944. The decision highlighted the requirement for an unmistakable error that is evident on the face of the record to justify rectification, ultimately leading to the dismissal of the rectification application in this case.