2019 (12) TMI 1675 - CESTAT NEW DELHI

Rectification of mistake - time limitation - application rejected on the ground that it is filed beyond six months of passing of the impugned final order - Section 35C(2) of the Central Excise Act - HELD THAT:- No doubt the Tribunal vide order in case of NATIONAL ENGG. INDS. LTD. VERSUS COMMISSIONER OF C. EX., JAIPUR [2001 (11) TMI 104 - CEGAT, COURT NO. I, NEW DELHI] and the final Order in case of M/S. RSPL LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE, ALWAR [2019 (4) TMI 2151 - CESTAT NEW DELHI] has held that the ROM application can be entertained within six months from the date of the order. However, on the other hand, the learned Advocate has placed reliance on the decisions of Hon‟ble Gujarat High Court in case of LILADHAR T KHUSHLANI VERSUS COMMISSIONER OF CUSTOMS [2017 (2) TMI 200 - GUJARAT HIGH COURT] where it is held It is reported that the rectification application was submitted within the period of six months from the date of receipt of the order/dispatch order, and therefore, the impugned order passed by the learned CESTAT cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the learned Tribunal to consider the rectification application in accordance with law and on its own merits treating the same to have been filed within the period of limitation provided under the Act.

Further, reliance was placed on the decision of VADILAL INDUSTRIES LTD. VERSUS UNION OF INDIA [2005 (12) TMI 103 - HIGH COURT OF GUJARAT AT AHMEDABAD], wherein it is held that relevant date of six months for filing of ROM has to be reckoned from the date of receipt of the order by the appellant.

Thus, it is found that any person will notice error apparent in the order only when he receives the order and examine it. This aspect is based on the various decisions of the High Courts referred above - it is thus concluded that the relevant date for computation of six months, as envisaged in the provision of Section 35C(2) of the Central Excise Act, will be from date of receipt of the order by the appellant.

The Section 129 (B) (2) of the Customs Act, 1962 is parimateria to Section 35C(2) of Central Excise Act, 1944 and hence the decision of SUNITADEVI SINGHANIA HOSPITAL TRUST VERSUS UNION OF INDIA [2008 (11) TMI 249 - SUPREME COURT] will be applicable to Central Excise Act, as well.

Thus, it is found that all the submissions made by the appellant were not considered by the Tribunal except it got swayed by the admission on part of Shri Alok Aggaral, proprietor of the appellant accepting the clandestine removal. It is apparent from the record that the provision of Section 9D of the Central Excise Act, 1944 as mentioned to have been submitted by appellant, have not been considered while adjudicating the case rather reliance on the third party evidences for alleged clandestine removal of manufactured goods by the appellant - thus, vital aspect which are very much essential to be considered by the Tribunal could not have been considered in the said final order.

Thus, the errors as pointed out in the impugned order are errors apparent on record. Accordingly, ROM is allowed.