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2014 (3) TMI 130 - HC - Central ExcisePower of tribunal to rectify the mistake - In the process of rectifying its mistake it considered the issue of limitation for the first time which was not considered earlier. - Held that:- the issue of limitation though argued before the Tribunal, was not considered while passing the order dated 1 September 2004. The decision relied upon by Mr.Bhate in the matter of Deva Metal Powders Pvt. Ltd. (2007 (12) TMI 221 - SUPREME COURT OF INDIA) in fact very categorically holds that a mistake capable of being rectified is not confined to clerical or arithmetical mistake but any error apparent from the record. A mistake which can be rectified is one which is patent, obvious and whose discovery is not dependent on argument or elaboration. In this case, the Tribunal rectified its mistake in not having considered the issue of limitation earlier. In the process of rectifying its mistake it considered the issue of limitation for the first time which was not considered earlier. This consideration by the Tribunal was well within the exercise of its jurisdiction under Section 35C(2)of the Act to rectify a mistake apparent on the record. Gujarat High Court in Baroda Rayon Corporation Ltd. Vs. Union of India [2005 (10) TMI 104 - HIGH COURT OF GUJARAT AT AHMEDABAD] observed that where the findings of a Tribunal are a result of ignoring the facts on record or failing to consider the averments made in the memorandum of appeal, then such an error is an error apparent on record. In such cases, the Court held that the Tribunal should not feel shy to accept that it had committed an error. Tribunal was correct in exercising its jurisdiction under Section 35C(2) of the Act and correct its mistake by considering the issue of limitation. - Decided against the revenue.
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