TaxTMI 
TaxTMI 
2007 (5) TMI 492
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....orded as follows :- "3. Shri V.S. Nankani, ld. Advocate, appearing for the appellants before us fairly concedes that the Tribunal's order in the case of M/s. Excon Building Materials Manufacturing Co. Pvt. Ltd. v. CCE, Mumbai vide Order No. 59/99-D, dated 23-11-1998 is against the appellants inasmuch as vide the said order, the Tribunal, after considering the entire relevant material on record has held that exemption Notification is not available to cement concrete blocks inasmuch as the same are used in masonary work and cannot be considered as intermediates or components of pre-fabricated buildings. The same appeared to be only substitute for bricks, which hare used in traditional construction work. Appeal there against stands dec....
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....gs. The National Building Code 1983, as per section 7 relating with "Prefabrication and Systems Building" under Part VI 'Structural Design' thereof was material to decide the issue but the same was not considered though the Synopsis specifically refers to its contents with its applicability to the facts as set out hereinabove. 3. It was submitted that in view of what is factually set out in para six of Synopsis and ground seven and eight thereof, the aforesaid "concession" on facts could not be correct and hence the impugned order suffers from a mistake on facts apparent from the record. 4. It was further submitted that the appeal was rejected by following the decision of the Tribunal in the case of M/s. Excon Building Mater....
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....not produced any evidence to show that blocks manufactured by them were of a kind used in pre-fabricated buildings, hence on that ground the classification under sub-heading 6807.20 was rejected." 7. The learned Advocate invited our attention to similar plea made in the synopsis at page two which reads under:- "........appellant (in the case of EXCON) never claimed that their blocks could be used in pre-fabricated buildings or that they were intermediate or components of pre-fabricated buildings...... notification was available even to blocks, slabs and lintels." 8. In view of the above, it was submitted that the decision in EXCON cannot be considered a authority on the issues which were never before it. Reliance in this ....
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.... the record contemplated by this section cannot be one that is to be brought out by a long drawn out arguments. Mistake apparent from the record cannot be spelled out on the ground that all the grounds mentioned in the memo of appeal were not dealt with by this Tribunal when it pronounced the final order". 12. We have considered the submissions. We find that that the appellant's main plea is that the decision of the Supreme Court in the case of M/s. Excon Building Materials Manufacturing Co. Pvt. Ltd. v. CCE, Mumbai was not applicable in their case as in that case there was no averment by the assessee that their blocks could be used in pre-fabricated buildings or that they were intermediates or components of pre-fabricated buildings....
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....submission made by the applicant has been taken note of and a finding has been given on the same. If the applicant do not agree with the finding, he can file appeal against the same. Therefore what is being sought under the garb of rectification of mistake application is actually a review of order passed by the Tribunal which cannot be allowed. 14. Alternate plea that classification has become final once the Commissioner (Appeals)'s order was not challenged by Revenue on which there is no finding by the Tribunal, we find that as pointed out by the learned SDR, five Members Larger Bench in the case of Om Prakash Bhatia v. CCE, New Delhi cited supra has clearly held that the rectification of mistake cannot be sought on the ground that....