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2019 (4) TMI 750 - AT - Central ExciseRectification of mistake - Jurisdiction - power on the Appellate Tribunal to rectify any mistake apparent from the record - Section 35 C (2) of the Central Excise Act, 1944 - error apparent from the record - Held that:- A bare perusal of the aforesaid sub-section (2) of Section 35C(2) of the Act indicates that the Appellate Tribunal may, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1). Sub-section (1) provides that the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision for a fresh adjudication. What is, therefore, necessary for a mistake to be rectified is that it must be apparent from the record. Both ‘mistake and ‘apparent’ have been explained by the Supreme Court in Deva Metal Powders (P) Ltd. vs Commissioner, Trade Tax (UP), [2007 (12) TMI 221 - SUPREME COURT OF INDIA]. The Supreme Court pointed out that ‘mistake’ means to take or understand wrongly or inaccurately or to make an error in interpreting and ‘apparent’ means visible; capable of being seen; obvious; plain. It has, therefore, been observed by the Supreme Court that a mistake which can be rectified is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. Whether non-consideration of a judgment relevant to the issue for determination which was also placed before Bench of the Tribunal, can be said to be a mistake apparent from the record so as to be rectified under Section 35C(2) of the Act? - Held that:- This issue was examined by the Supreme Court in Asstt. Commr., Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange Ltd., [2008 (9) TMI 11 - SUPREME COURT]. The Supreme Court held that non-consideration of a decision of a High Court or the Supreme Court can be said to be a “mistake apparent from the record”, which mistake can be rectified. It was pointed out that the error apparent from the record should be so manifest and clear that no Court would permit it to remain on record. It should be pertinent and self-evident and not require any elaborate discussion of evidence or argument. It was also observed that rectification of an order stems from the fundamental principle that justice is above all and it is to be exercised to remove the error and to disturb the finality. Thus, the mistake that had crept in the Final Order by granting benefit of the Exemption of the Notification from 6 September, 1995 instead of from 1 March, 1994 needs to be rectified - ROM application allowed.
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