1995 (8) TMI 141 - AT - Central Excise

Summary

Issues: Application under Section 35C of the Central Excises and Salt Act, 1944 to amend a Final Order based on an alleged mistake.

Analysis:
The judgment pertains to an application under sub-section (2) of Section 35C of the Central Excises and Salt Act, 1944 seeking to rectify a Final Order passed by the Tribunal. The appellant's counsel argued for the amendment of the Final Order to include an alternative plea for re-determination of duty at a lower rate, which was allegedly not addressed in the original order. The counsel highlighted that this alternative plea was raised in the Memorandum of Appeal and before the Collector (Appeals). The omission of findings on this plea in the Final Order was considered a mistake apparent on the record necessitating rectification. The counsel also pointed out that authorities had granted the benefit of the lower rate for the subsequent period.

In response, the respondent's representative contended that the alternative plea regarding duty re-determination at a lower rate was never argued before the Bench during the appeal hearing. Therefore, it was not considered while passing the Final Order. The respondent argued that the application did not mention that the alternative case was argued during the appeal hearing, implying that no findings were recorded on it. The respondent emphasized that reopening the case based on the present application was unwarranted as there was no error apparent from the record.

During the proceedings, the appellant's counsel admitted that there was no mention of the alternative plea being argued before the Bench during the appeal hearing. The Bench noted that the Final Order did not address the alternative plea for re-determination at a lower rate since it was not argued during the appeal on merits. The judgment emphasized that the discretion to argue a point, even if included in the Memorandum of Appeal, lies with the appellant or their counsel. It was clarified that the Tribunal cannot reopen a case or recall an order solely because the appellant wishes to present an alternative case that was not argued during the appeal hearing. The judgment highlighted that if the appellant feels they failed to argue a particular case, the remedy does not lie in filing an application before the Tribunal seeking rectification.

Ultimately, the Tribunal rejected the application seeking to amend the Final Order based on the alleged mistake regarding the alternative plea for re-determination of duty at a lower rate. The judgment underscored that rectification under Section 35C cannot be used to reopen a case or recall an order due to the appellant's choice not to argue a particular point during the appeal hearing, even if it was included in the Memorandum of Appeal.