TMI Blog2008 (5) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... correctness of the order of the Commissioner (Appeals) had been challenged. The Commissioner (Appeals) had reversed the order of the original authority and allowed refund of a total amount of Rs. 4,36,678.56 in cash whereas the original authority had allowed Rs. 3,11,679/- out of the above amount by allowing credit in the respondent s Cenvat account. The Final Order No. 1036/2007 was passed after hearing both sides and following the ratio of the decision of the Tribunal in CCE, Bhopal v. Bombay Burma Trading Corporation Ltd. - 2005 (190) E.L.T. 40 (Tri.-Del.). In the said decision the Tribunal had held that there was no bar against payment of refund originally made from the Cenvat account in cheque or cash. It had also been held that when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicability of the doctrine of per incuriam. In cases where due to inadvertence or oversight, court or Tribunal failed to notice the statutory provision or a binding authority, principle of per incuriam may apply as held by the Supreme Court in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356. 3. During hearing the learned SDR submits that though the records do not indicate that the Gauri Plasticulture (P) Ltd. case had not been mentioned before the Tribunal he was not sure whether the same had not been mentioned. He submits that as per their records the Revenue s case was based on the larger Bench decision in Gauri Plasticulture (P) Ltd. case. 4. The learned consultant for the respondents submits that the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court was not justified in reviewing its earlier order. 6. I find that in a later judgment in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., the Apex Court had held that if the Tribunal failed to notice a binding authority the principle of per incuriam applied. Therefore, as per the decision of the Larger Bench in Hindustan Lever Ltd. case, non-consideration of a binding precedent constituted an error apparent on the face of the record by the applicability of doctrine of per incuriam. I find that a Bench of two Judges of the Supreme Court held in 2001 in Fuerst Day Lawson Ltd. case (supra) that an order passed without considering a binding authority could be reviewed as constituting an error apparent from the record of such order. I fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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