9911796707
TMI Blog2008 (7) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... ough monthly return ER-1 for the month of April, 2003, such fact was not considered. (4) Recording of the fact that the Appellant had failed to prove from its own daily stock account clearly demarcating entries showing branded and unbranded vanaspati was not correct. (5) That investigation found 10.5 MT was lying in godown and 7.6 MT was cleared without accounting which aggregated to 1.180 MT but not 181.180 MT as appeared in para 3.3 of the order. 2. Shri Kaushik Gupta, Liaison Officer, appearing on behalf of the Appellant reiterated the grounds in the application for rectification of mistake and submitted that the same may be considered as per law. 3.1 Shri Y.S. Loni, learned Departmental Representative (DR) appearing on behalf of Revenue submitted that extensive hearing was granted to the Appellant when the Appeal was disposed on earlier occasion. The order passed by the Tribunal is self-speaking, elaborately reasoning facts of the case. Considering full length of arguments of both sides, appropriate order was passed and the Appellant was granted relief on the basis of evidence shown in the course of hearing by both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods sold and jars available for packing thereof proved against the appellant. (D) The appellant could not come out with any proof to prove availability of jar for clearance of 152.115 MT of unbranded vanaspati during April, 2003 when the levy was introduced on branded vanaspati. (E) Also the appellant failed to prove from its own daily stock account by clearly demarcating entries showing branded and unbranded vanaspati produced and cleared during the impugned period and so also stock of branded and unbranded jars with respective evidence not accounted separately for each. (F) 12.510 MT of vanaspati was in record as opening balance on 19-7-2003. However, 7.680 MT of vanaspati in 512 jars were cleared without being accounted for on the date of investigation. 10.500 MT of vanaspati having been found lying in the factory was also not accounted for. Considering that the Appellant made entry of unaccounted stock to suffer duty, the Adjudicating Authority was directed to impose duty on such unaccounted stock. Accordingly it was directed in Para 6.2 of the Tribunal's order that confiscation made for the entire quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent from record cannot be equated with the power of review as held in the case of M/s. Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, U.P. as reported in 2008 (221) E.L.T. 16 (S.C.). It was held that the power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being seen, obvious; plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." A mistake which can be rectified is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. Rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. In order to bring an application for rectification of mistake the mistake must be "apparent" from the record. Law does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used. 5.5 It was held in the case of Commissioner of Central Excise, Mumbai v. M/s. Bharat Bijlee Ltd. - 2006 (198) E.L.T. 489 (S.C.) that if Tribunal fails to take into consideration the material evidence which was present on the record, failure to take into consideration the material evidence, which is present on the record, would certainly amount to mistake apparent on the face of the record and the Tribunal under the circumstances would have the jurisdiction to correct the said mistake in exercise of its powers under Section 35C(2) of the Act. 5.6 Granting of power of rectification to Tribunal can be gathered from the Apex Court Judgment in the case of M/s. Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi - 2008 (221) E.L.T. 11 (S.C.). It was held that one of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, without any scope for controversy, with regard to such error. If the law that is applied is not the law applicable, it will be a case of error apparent on the face of record. If the judgment is defective, on the face of it, or where an important issue on which the outcome of the proceeding would depend, has not been considered or the law declared by the Apex Court or the jurisdictional High Court has not been noticed, that too would constitute error on the face of the record. We observe no more for the purpose of this case. 13. The remedy of appeal, revision or review etc. is creature of statute and rectification application under Section 35-C(2) of the Central Excise Act cannot be placed on a higher pedestal. If the Legislature had intended to provide for review of the orders, such power could be expressly conferred. The Tribunal's power of rectifying any mistake cannot be used as a tool by a disgruntled unsuccessful party to prolong the proceeding. The power has to be exercised with due care and circumscription.' 6. For the reasons aforesaid and following the ratio laid down by Apex Court in some of the judgments cited above, the appellant fails to succeed in en ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
