TMI Blog2015 (10) TMI 2686X X X X Extracts X X X X X X X X Extracts X X X X ..... y CESTAT cannot be considered as rectification of mistake and held that the ROM order is bad in law and quashed the order. The Hon’ble Supreme Court decision in the case of CCE, Calcutta v. A.S.C.U. Ltd. [2002 (12) TMI 87 - SUPREME COURT OF INDIA], wherein the Apex Court held that any decision on debatable point of law cannot be treated as ‘mistake apparent from record’. There are no apparent and manifest mistake in the Tribunal’s final order so as to exercise the powers to recall or modify the Final Order No. 40828/2014, dated 20-11-2014. ROM application rejected. - Application Nos. E/ROM/40446-40447/2015 in Appeal Nos. E/243-244/2004 - Misc. Order Nos. 41414-41415/2015 - Dated:- 7-10-2015 - Shri R. Periasami, Member (T) and P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 538 (Tri.-Chennai) (iv) Stanlek Engineering Pvt. Ltd. v. CCE, Mumbai - 2008 (229) E.L.T. 61 (Bom.) = 2009 (16) S.T.R. 682 (Bom.) (v) ACIT v. Saurashtra Kutch Stock Exchange Ltd. - 2008 (230) E.L.T. 385 (S.C.) (vi) CCE, Thane v. Aura Oil Industries - 2010 (256) E.L.T. 613 (Tri.-Mumbai) (vii) ACIT v. Saurashtra Kutch Stock Exchange Ltd. - 2010 (18) S.T.R. 84 (S.C.). 3. On the other hand, ld. AR vehemently opposed the applications and there is no mistake apparent on record on their grounds which is the findings of this Tribunal. As per CESTAT Rules any rectification of mistake/defect which is apparent on face of record can only be considered for rectification whereas in this case appellant is seeking to re-appreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l s order dated 20-11-2014 which amounts to review of the order and there is no power vested with Tribunal to review its order. Appellant s relied High Courts and Supreme Court case laws referred to above which are distinguishable to the facts of the present case whereas the Tribunal had discussed the issue in detail and also relied Supreme Court case laws. 5. In this regard, the Hon ble Supreme Court in the case of CCE v. RDC Concrete (India) Pvt. Ltd. clearly held that re-appreciation of evidence done by CESTAT cannot be considered as rectification of mistake and held that the ROM order is bad in law and quashed the order. The relevant paragraphs of Supreme Court order is reproduced as under : 16. Upon perusal of both the orders vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusions were arrived at by the CESTAT because it re-appreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. . . . 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain such applications. Rule 41 reads as follows :- 41. Orders and directions in certain cases. - The Tribunal may make such orders to give such directions as may be necessary or expedient to give effect or in relation to its orders to prevent abuse of its process or to secure the ends of justice. 13. In my considered opinion, this rule also does not empower the Appellate Tribunal to recall a final order passed as per the statutory compulsion for non-compliance of payment of pre-deposit. In my considered view, interim orders of such kind normally granted in appeals, after the appeals are entertained by the courts cannot be equated to an order dispensing with the payment of pre-deposit. In these cases, the interim order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith, the appellate tribunal has got no other power or discretion except to reject the appeals. That is what has been rightly done by the appellate tribunal in the instant cases. Therefore, after such orders have been passed, which have put a finality to the proceedings, it is not all open for the appellate tribunal to entertain the applications under Section 129B(2) of the Act to recall its own orders. Though the Appellate Tribunal has rejected these applications on different grounds and even assuming that the grounds on which the applications have been rejected by the Appellate Tribunal are not sustainable, in my considered opinion, the ultimate orders rejecting the applications cannot be interfered with inasmuch as the applications ought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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