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TMI Blog1986 (5) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice dated 8-12-1977. By the present application purporting to be under section 35C(2) of the Central Excises and Salt Act, 1944 the applicant-Collector of Central Excise, Bhubaneswar (hereinafter called the Collector) prays that the period of exclusion with respect to notice period should be 26-12-1977 to 6-10-1982 and not 26-12-1977 to 16-3-1978 as earlier ordered in paras 11 and 13 of the order supra. 2. The present application is made in the following circumstances. The Bench ordered exclusion of the period 26-12-1977 to 16-3-1978 relying on the modification dated 2-1-1978 in the stay order. According to this stay order the interim stay granted by the High Court was to continue till filing of counter by the Department and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave filed a copy of the same before the Bench, he submitted that the Collector and the Sr. D.R. who represented him were equally under a duty to bring this order to the notice of the Bench which heard the matter. His further submission was that in any case as this order dated 31-1-1978 was not before the Bench, the rectification now prayed for cannot be said to be an error apparent on the record and the application was misconceived. His further submission was that from para 10 onwards of the order it appeared that according to the contention of the appellants' counsel Shri Mohanty show cause notice was issued on 2-3-1983 and the assessment, according to the argument, could only be for six months from the date backward i.e. 1-9-1982. The ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Sd/- P.K. Mohanti" "From Shri Ajoy Chandra Das, B.A. (Hons) LL.B. Deputy Registrar of me High Court of Orissa To The Superintendent of Central Excise Choudhwar, Cuttack Dated Cuttack, the 7th February, 1978 Sir, In continuation of Court's Memo No. 1874 dated 27-12-1977 I am directed to send herewith a copy of Order Nos. 4 and 5 dated 2-1-1978 and 31-1-1978 respectively passed in O.J.C. No. 1072-77 for your information and guidance. Yours faithfully, Sd/- Deputy Registrar" Paras 11 and 13 of the Bench Order No. 297 to 302/85-B dated 16-4-1985, which are material for the present application are also extracted below : "11. On the facts of the case, we find that period from 26-12-1977 to 16-3-1978 could only be exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that during hearing of this rectification application he was not present because he could have better explained how the clarification order dated 31-1-1978 passed by the Hon'ble Orissa High Court clarifying their interim stay order dated 2-1-1978 was not placed before the Bench. But for the later order, the earlier order was incomplete. Even if we accept Shri Narasimhan's explanation that the non-applicant or their counsel may not have been aware of Order dated 31-1-1978 and, therefore, cannot be said to be responsible for suppression of fact/the fact would still remain that the non-applicant was, in any case, negligent. It was the duty of the non-applicant when it placed order dated 2-1-1978 before the Bench to have verified and satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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