TaxTMI 
TaxTMI 
2017 (8) TMI 596
X X X X Extracts X X X X
X X X X Extracts X X X X
....priate writ, order or Direction quashing and setting aside order No.M/1040610407/ 2017 dated 14.6.2017 (Annexure" G" passed by the Appellate Tribunal, Ahmedabad, on E/ROM/1009510173/ 2017; (B) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order, directing the Appellate Tribunal, Ahmedabad to decide Application No.E/ROM/10095/2017 filed by the Petitioner herein for correction of a typographical error in final order No.A/11063/2016 dated 29.9.2016 with a further direction and order thereby holding and declaring that this final order No.A/11063/2016 dated 29.9.2016 subsists as regards decision on Appeal No.E/1585/2009 with correction of the above referred typographical error; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Appellate Tribunal from hearing and deciding appeal Nos.E/1585/2009 and E/1483/2010 thereby staying implementation of order No.M/1040610407/ 2017 dated 14.6.2017 (Annexure" G"); (D) An exparte adinterim relief in terms of para 21 (C) above may kindly be granted. (E) Any other further relief that may be deemed fit in the facts and cir....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... revenue's appeal against the above order was rejected. The said order has been accepted by the revenue and it is thus a concluded matter that the petitioner has not passed on the incidence of duty paid under protest to any other person and that the refund claim of the petitioner was not hit by unjust enrichment. On the petitioner's claim for interest on delayed refund, the Assistant Commissioner passed an adjudication order and sanctioned interest of Rs. 44,28,444/in view of the provision of Section 11BB of the Central Excise Act for interest on delayed refund. This amount of interest has been paid to the petitioner on 1st May 2008. 3.3 Against the above referred order sanctioning the interest, the revenue had filed appeal, which was allowed by the Commissioner (Appeals), but the Appellate Tribunal remanded the case back to the Commissioner (Appeals) who passed OIA No.116/2009 and held that the petitioner's claim for interest on delayed refund was not sustainable. On the stay application filed by the petitioner company with a substantive appeal No.E/1585/2009 before the Appellate Tribunal against the above OIA No.116/2009 of the Commissioner (appeals), a stay order wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....heard and decided. For this reason, a prayer was made in the Revenue's Misc. Application for passing appropriate further orders on Appeal No.E/1585/2009. The Appellate Tribunal heard both the applications for rectification of mistake together, and on oral submission of the revenue's representative that the final order passed on Appeal No.E/1585/2009 should be recalled because the other appeal No.E/1483/2010 was not listed together for disposal, the Appellate Tribunal has recalled the final order dated 29th September 2016 by which Appeal No.E/1585/2009 was allowed in the petitioner's favour and this order was made after hearing both the sides and on merits. While recalling the final order made on merits, the Tribunal has observed that both the appeals should be listed for hearing together on 26th July 2017. 3.6 It is settled legal position that the Appellate Tribunal can rectify only a mistake apparent on record, which must be in the nature of typographical or clerical error, or when a submission going to the root of the case was not considered or decided; but a final order passed on merits of the case cannot be recalled only on the ground that the appeal was to be hear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entioned in the petition. 5. Learned counsel for the petitioners invited Court's attention to the fact that the purport and scope of Section 35 C (2) is unfortunately not appreciated by either the department or the tribunal, which has resulted into undertaking the exercise, which was not available to the tribunal to undertake for recalling the order, which was otherwise absolutely just and proper. 6. Learned counsel for the petitioners invited Court's attention to the order passed by the tribunal on the subsequent appeal being Appeal No.E/1483/2010 and submitted that the order for waiver of recovery of socalled erroneous refund made on 8th August 2011 contained a direction to the registry of tribunal for hearing the said appeal along with appeal being Appeal No.E/1585/2009. Unfortunately, when the tribunal was hearing the Appeal No. E/1585/2009 the subsequent appeal being Appeal No.E/1483/2010 had not been listed and the matter being Appeal No.E/1585/2009 came to be disposed of on merits vide order dated 29th September 2016, which was absolutely just and proper order and nonhearing of the Appeal No.E/1483/2010 could not have given any cause of action whatsoever for filing....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of India. 10. We have heard learned counsel for the parties and perused the proceedings. The provision of Section 35 C (2) of the Central Excise Act, 1944 require to be setout as under :Section 35 C (2) The Appellate Tribunal may, at any time within 2[six months] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1) and shall make such amendments if the mistake is brought to its notice by the 3[Commissioner of Central Excise] or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this subsection, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 4[(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceedings relating to an appeal filed under subsection (1) of section 35B, th....