TMI Blog2009 (2) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... -2008 [2008 (226) E.L.T. 735 (Tri. - Mum.)] which was passed by this Bench, the classification of the goods in question was held against the assessee (appellant), and consequently, the demand of duty was confirmed against them. The penalty imposed under Sec. 11AC of the Central Excise Act by the Adjudicating authority also came to be affirmed. The appellant, in their ROM application filed under sub-section (2) of Sec. 35C of the Central Excise Act, pointed out what they considered as apparent mistakes in the final order both in relation to classification and penalty. After hearing both sides, we disposed of that application giving partial relief. While no error was found in our order pertaining to classification of the goods, we found mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct satisfies the requirement thereof, for a period prior to 28-9-1996 as well. Apart from reiterating this case of the department as made out in the present application, the ld. SDR submits that this application is maintainable on merits, in as much as, it seeks to rectify a mistake occurring in the amended final order. It is also pointed out that a civil appeal filed by the assessee against the Tribunal s final order is pending before the Hon ble Supreme Court. 2. The Ld. Counsel for the respondent has raised a preliminary objection which is to the effect that, this application is not maintainable in law. It is submitted that, under Sec. 35C(2) of the Act, only a final order of the Tribunal can be rectified and that, the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Act is Sec. 254 of the Income Tax Act and not Sec. 154 of that Act. Sec. 254 authorises rectification of mistake in final orders passed by the Income Tax Appellate Tribunal. We are not impressed with the reliance placed on the above judgment of the Apex Court, in as much as, there are binding decisions of the Tribunal s Larger Bench on the maintainability issue raised before us. In the case of Berger Paints India Ltd. v. Collector of Customs [1993 (68) E.L.T. 479 (Tribunal), a Larger Bench of this Tribunal held that, a second application for rectification of alleged mistake in an order rejecting an application for rectification was not maintainable under Sec. 129B(2) of the Customs Act, 1962. Again, in the case of L.M.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue s case in the face of maintainability issue. 4. We have also noticed from the submissions of both sides that, when the asseesse s ROM application was pending with this Bench, they had filed a Civil Appeal against our final order before the Hon ble Supreme Court. That appeal is said to be pending. It is also noticed that the assessee has moved the Apex Court for amending the Civil Appeal in the wake of our order on their ROM application, in as much as that application was only partially allowed. The present applicant (department), is obviously, a party to the proceedings before the Apex Court and it is open to them to take recourse to remedy available to them vis- -vis our final order and subsequent order on ROM application. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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