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2005 (12) TMI 103 - HC - Central ExciseRectification of mistake - Limitation - Seeking quashing and setting aside of the order made by CESTAT in appeal as well as the orders of the Commissioner (Appeals) and the Adjudicating Authority - HELD THAT:- In the present case, the Registry of the Tribunal has categorically averred that it had sought to effect the service in the manner laid down in Section 37C(1)(a) of the Act and the envelope had been returned unserved. Therefore, the Registered Post had not been acknowledged. Thereupon, it became necessary for the authority to effect service in the mode prescribed under Section 37C(1)(b) of the Act, and in the event of non-service by the said manner, by the mode prescribed under clause (c) of sub-section (1) of Section 37C of the Act. It is not even the case of respondent No. 2 that it had sought to effect service and had effected service in any of the modes prescribed under clauses (b) and (c) of sub Section (1) of Section 37C of the Act. Thus, the averment made on oath by the petitioner that a copy of the order was not served on the petitioner, remains unrebutted. The Technical Officer of CESTAT vide communication dated 23-8-2005 has returned the papers of ROM Application on the ground that the same was barred by limitation. There is another angle from which the matter can be approached. It is only the party to the appeal who finds that the order contains a mistake apparent from the record and is aggrieved by such mistake, would be in a position to move an application seeking rectification of the order. Therefore also, unless and until a party to the appeal is in a position to go through and study the order it would not be possible, nor can it be envisaged, that a party can claim to be aggrieved by the mistake apparent from the record. Hence, even on this count the period of limitation has to be read and understood so as to mean from the date of the receipt of the order. Therefore, the action of the Technical Officer to return the papers of ROM Application without even placing the same before the Bench concerned is not only bad in law, but is not supported by the provisions of the Act. Thus, the ROM Application moved by the petitioner not having been disposed of on merits after hearing the parties, it would be just and fair that the same is taken on record and disposed of after hearing the parties. The communication dated 23-8-2005 (Annexure J), addressed by the Technical Officer of CESTAT to the petitioner is hereby quashed and set aside. As the record reveals the appeal was fixed for hearing on 16-10-2003, the petitioner prayed for adjournment through its Advocate and thereafter did not take any steps to pursue the outcome of adjournment application, nor did the petitioner make any inquiry as to why no date of hearing was being fixed. This lapse of the petitioner continued up to 13-7-2005 i.e. nearly two years and in the circumstances, it would be just and fair if the petitioner is directed to pay costs of the petition to the respondents namely respondent no. 3. The costs so payable by the petitioner are quantified at a sum of Rs. 10,000/- (Rupees Ten Thousand Only). The petition is accordingly allowed. Rule is made absolute to the aforesaid extent.
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