TaxTMI 
TaxTMI 
2006 (8) TMI 9
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....elying on the decision of the Tribunal in Gomti Carbon dioxide reported in 2000 (119) E.L.T. 565 (Tri - LB). Thereafter, rectification application was made, inter alia, on the ground that Larger Bench decision of the Tribunal in Gomti Carbon Dioxide (supra) was reversed by the decision of the Supreme Court in A. Infrastructure Ltd. v. Commissioner of Central Excise, Jaipur, reported in 2004 (167) E.L.T. 369 (S.C.), and therefore, could not have been relied upon and this mistake was required to be rectified under Section 35C(2) of the Central Excise Act, 1944. While hearing the application the Bench was confronted with rival views on its power to rectify. The Bench took into consideration the decision of the Madras High Court in V. Guard Industries v. Commercial Tax Officer reported in 2003 (158) E.L.T. 806 (Mad.), holding that rectification of a mistake could be done in a situation wherein a decision was contrary to the law laid down by the Supreme Court. It also took into consideration the decision of the Supreme Court in Sai Narayan Row v. Commissioner of Income Tax reported in 64 ITR 67, to the effect that non-consideration of a decision of the Supreme Court was an error on the ....
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....9 (237) ITR 834 (Guj.) These decisions have been relied upon to emphasize that where a binding decision of the Court either rendered before or after the decision sought to be rectified, is not taken into consideration, there will be error apparent from the record of the order, which is required to be rectified. The learned counsel for the assessee and the learned counsel intervening took us through the above decisions in support of their contenticn that since the decision in Gujarat State Fertilizers and Chemicals (supra) stood expressly overruled, the rectification application was required to be decided on merits. Though we have been taken through various decisions which have a bearing on the question whether in a given situation the order should be rectified or not, and on the principles for rectifying such orders, as also whether there is similarity of various provisions empowering rectification under different laws, we have chosen to confine ourselves only to the question referred viz, whether the decision in Gujarat State Fertilizers and Chemicals (supra) stands overruled. 4. Admittedly, the rectification application raised a question whether the decision of the Supreme ....
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.... the doctrine of per incuriam can not be invoked, yet there would be error apparent from the record of such order on the reasoning.that the superior court declared the law as it always was, and therefore, the question whether there was error apparent from the record of the order, (which could not have taken into consideration, such subsequent decision), would still arise, since the binding decision of the Apex Court that declared the law as it always was, would cover even the prior period from the inception of such law, during which the orders contrary to such ratio of the subsequent binding decision were passed. This again will be so on the reasoning that since the binding decision of the Apex Court or the jurisdictional High Court has declared the meaning of the law, there was no scope for any debate and, therefore, the prior order of the Tribunal, which though it could not have taken such decision into consideration, should be examined in the light of the meaning given by the binding decision, warranting rectification on the ground that there was error apparent from the record in not following the law as now declared. We are aware that a very alarming situation can arise because....
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....l Excise, Vadodara [2002 (122) E.L.T. 282 (Tri.-LB) had decided that a subsequent order is not a ground for reopening a concluded proceeding and passing fresh order; (ii) Since the representative who appeared in rectification proceedings before the Tribunal had not participated in earlier proceedings the submission that the Tribunal had not considered all the issues raised before it could not be considered. 6. The legal position as to the effect of decision of the jurisdictional High Court is well settled and needs no elaboration. In the case of Suhrid Geigy Ltd. v. Commissioner of Surtax - (1999) 237 ITR 834, this Court has laid down as under:- 'Section 13 of the Companies (Profits) Surtax Act, 1964 provides for rectification of mistake apparent from the record. A point which is debatable cannot be termed a mistake. But when the point is covered by a decision of the Supreme Court or concerned High Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point and it also ceases to be a point requiring elaborate arguments or detailed investigation/ inquiry....