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2015 (5) TMI 1025 - AT - Central ExciseRectification of error apparent from record filed under Section 35C(2) - Held that:- Provisions of Rule 34(a) of SWM(PC) Rules have not been considered and the letter dated 13-5-2004 and 28-2-2004 of the legal metrology department addressed to the appellant wherein the appellant had been informed that the tiles supplied by them to building contractors, builders, Hotels, Hospitals Housing ‘Societies etc. are not exempt from the provisions of SWM(PC) Rules had not been considered by the Tribunal, we find that this plea is not factually correct as while the plea regarding the provisions of Rule 34(a), has been specifically considered in para 17 of the Tribunals final order, the other plea regarding letter dated 13-5-2004 of the legal metrology department Jhajjar has been considered in para 16 of the Tribunal’s order. Once a plea made by the appellant in the grounds of appeal and at the time of personal hearing has been considered by the Tribunal and not accepted, whether rightly or wrongly, this cannot be treated as a mistake apparent from record needing rectification under Section 35C(2). Mistake apparent from record would occur only when a specific plea has been made and has not been considered at all. Under the provisions of Section 35C(2) the Tribunal cannot go into the question of the correctness or otherwise, of the Tribunal’s decision on a particular plea made by the Appellant. In the ROM proceedings the Tribunal can consider only these points which as per the records of the case, had been raised and the Tribunal had omitted to consider these points and give its findings on them. The third mistake apparent from record pointed out by the appellant is that in the written submissions they had specifically pointed out to the judgement of Bombay Bench of the Tribunal in the case of H & R Johnson (India) Ltd. v. CCE, Raigad (2014 (6) TMI 453 - CESTAT MUMBAI ) wherein an identical issue was involved and the Tribunal in that case had held that in respect of supplies of tiles to builders, real estate developers etc. where the tiles had been supplied in retail packs with MRP declared on them and there was no declaration on the packages that the goods are meant for industrial buyers and are not meant for retail sails, the provisions of SWM(PC) Rules would be applicable and the assessable value of such goods would be required to be determined under the provisions of Section 4A. This judgment of the Tribunal had been affirmed by the Apex Court [2015 (10) TMI 559 - SUPREME COURT ]. ROM allowed.
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