9911796707
TMI Blog2009 (9) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with. The proviso 35C(2) do not empower us for condoning the delay in filing the application for rectification of mistake filed belatedly. Delay not condoned - COD application dismissed - decided against appellant. - E/161/2007 - Misc. Order Nos. 489-490/2009 - Dated:- 8-9-2009 - Shri M.V. Ravindran and P. Karthikeyan, JJ. Shri S. Muthu Venkataraman, Advocate, for the Appellant. Shri P.R.V. Ramanan, Special Counsel, for the Respondent. ORDER This miscellaneous application is filed by the Revenue for condonation of delay in filing the application for rectification of mistake in Appeal No. E/161/2007. 2. The relevant facts that arise for consideration are in Appeal No. E/161/2007, this Bench vide its Final Order No. 964/2007 dated 21-8-2007 allowed the appeal filed by the assessee. When the said appeal was disposed off by this Bench, both sides were heard at length and the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of mistake. For that purpose, he would rely upon the decision of the Hon ble Supreme Court in the case of Sunita Devi Singhania Hospital Trust v. Union of India as reported in 2009 (233) E.L.T. 295 (S.C.) = 2008-TIOL-235-SC-CUS. 4. Learned Counsel appearing on behalf of the assessee respondent would submit that the provisions of Section 35C(2) of the Central Excise Act, specifically indicates the time period for filing an application for rectification of mistake. It is his submission that there is no mistake apparent on the face of the record of the order of the Tribunal. It is his submission that the Tribunal had gone into details while coming to conclusion that the appeal of the assessee needs to be allowed. It is his submission that the reliance placed by the learned Counsel on the decision of the Hon ble Supreme Court in the Sunita Devi Singhania Hospital Trust (supra) is incorrect as the said decision indicates that the Hon ble Supreme Court had invoked the power vested with them under Article 142 of Constitution of India and directing the Tribunal to hear the matter. He would also submit that if that be so, the specific direction on 142 is applicable only to that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed refund claim on 20-11-2007 and all these claims were settled on 11-2-2008. We find that despite such settlement of refund claim on 11-2-2008, revenue did not consider it necessary to file an application for rectification of mistake apparent on the face of the record at that time. We are unable to understand the contentions of the revenue as regards the mistake being apparent on the face of the record when they themselves have sanctioned the refund claims filed by the assessee in Appeal No. E/161/2007. If the revenue had entertained an idea of there being mistake apparent on the face of the record in our Final Order No. 964/2007 dated 21-8-2007, they could have got the same rectified, when an assessee filed a refund claim. Revenue did not do so. There is no explanation for the delay in filing the application for rectification of mistake on 10-12-2008, when revenue themselves have sanctioned the refund claims to the assessee on 11-2-2008 in Appeal No. E/161/2007. 7. Be that as it may, this Tribunal is creature of statute, more specifically as provided under Section 129 of the Customs Act, 1962. The powers vested in the Tribunal for the purpose of deciding the appeals filed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king into consideration the question whether the law so laid down by the Tribunal is applicable to the fact of the appellants case or not. It is true that the period of limitation specified in terms of Sub-section (2) of Section 129(B) of the Customs Act is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefore. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with. While the judges records are considered to be final, it is now a trite law that when certain questions are raised before the Court of law or Tribunal but not considered by it, and when it is brought to its notice, it is the only appropriate authority to consider the question as to whether the said contentions are correct or not. For the aforementioned purpose the provisions of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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