2009 (2) TMI 545

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..../346 to 348/08-C.I/EB, dated 22-2-2008 [2008 (226) E.L.T. 735 (Tri. - Mum.)] which was passed by this Bench, the classification of the goods in question was held against the assessee (appellant), and consequently, the demand of duty was confirmed against them. The penalty imposed under Sec. 11AC of the Central Excise Act by the Adjudicating authority also came to be affirmed. The appellant, in their ROM application filed under sub-section (2) of Sec. 35C of the Central Excise Act, pointed out what they considered as apparent mistakes in the final order both in relation to classification and penalty. After hearing both sides, we disposed of that application giving partial relief. While no error was found in our order pertaining to classifica....

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.... said section on an offender whose conduct satisfies the requirement thereof, for a period prior to 28-9-1996 as well. Apart from reiterating this case of the department as made out in the present application, the ld. SDR submits that this application is maintainable on merits, in as much as, it seeks to rectify a "mistake" occurring in the amended final order. It is also pointed out that a civil appeal filed by the assessee against the Tribunal's final order is pending before the Hon'ble Supreme Court. 2. The Ld. Counsel for the respondent has raised a preliminary objection which is to the effect that, this application is not maintainable in law. It is submitted that, under Sec. 35C(2) of the Act, only a final order of the Tribunal....

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....hat, the provision comparable to Sec. 35C of the Central Excise Act is Sec. 254 of the Income Tax Act and not Sec. 154 of that Act. Sec. 254 authorises rectification of "mistake" in final orders passed by the Income Tax Appellate Tribunal. We are not impressed with the reliance placed on the above judgment of the Apex Court, in as much as, there are binding decisions of the Tribunal's Larger Bench on the maintainability issue raised before us. In the case of Berger Paints India Ltd. v. Collector of Customs [1993 (68) E.L.T. 479 (Tribunal), a Larger Bench of this Tribunal held that, a second application for rectification of alleged mistake in an order rejecting an application for rectification was not maintainable under Sec. 129B(2) of the C....