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TMI Blog2011 (1) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 2. In the order of reference dated 31-7-2008 it is observed that, the decision of the Division Bench of this Court in the said case in Commissioner of Central Excise, Bangalore-III v. Denso Kirloskar Industry Private Limited requires reconsideration, as the Division Bench of this Court while interpreting the provisions of Section 35C(2) held that, no order on the application for rectification can be passed beyond the period of six months and accordingly the learned judges have referred the matter to the Full Bench. 3. It is further observed that, in view of the argument submitted by the learned counsel that, the said period of six months is only a period for filing the application and not for disposal of the application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise on the application filed by the party to the proceedings. 6. In support of his contention he has relied upon the decision of the Hon'ble Supreme Court in the case of Sree Ayyanar Spg. & Wvg. Mills Ltd. v. Commissioner of Income Tax reported in 2008 (229) E.L.T. 164 (S.C.) = 2009 (16) S.T.R. 664 (S.C.). He has taken us through the provisions of Section 254(2) and contents of para 9 and 10 of the said decision wherein the principles laid down by the Hon'ble Supreme Court. 7. On the other hand, in response to the argument of the learned counsel appearing for the appellant, the learned senior standing counsel for the Central Government submitted that, the provisions of Section 35C(2) provides that, there should be expeditious d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 35C(2) of the Central Excise Act, 1944 and the provisions of Section 254(2) of the Income Tax Act are identical. 10. The interpretation of the provisions of Section 254(2) of the Income Tax Act, had come up for consideration by the Hon'ble Supreme Court in Sree Ayyanar Spg. & Wvg. Mills Limited v. Commissioner of Income Tax - 2008 (229) E.L.T. 164 (S.C.) = 2009 (16) S.T.R. 664 (S.C.) and following law has been laid down by Hon'ble Supreme Court in Para 9 and 10 which reads as under : "Para 9 : Analysing the above provisions, we are of the view that Section 254(2) is in two parts. Under the first parts, the Appellate Tribunal may, at any time, within four years from the date of the order, rectify any mistake ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave lapsed, which includes the period of pendency of the application before the Tribunal. If the assessee has moved the application within four years from the date of the order, the Tribunal is bound to decide the application on the merits and not on the ground of limitation. Section 254(2) of the Income Tax Act, 1961, lays down that the Appellate Tribunal may at any time within four years from the date of the order rectify the mistake apparent from the record but that does not mean that if the application is moved within the period, allowed, i.e., four years, and remains pending before the Tribunal after the expiry of four years the Tribunal can reject the application on the ground of limitation." 11. In view of the principles laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Bangalore-III v. Denso Kirloskar Industry Private Limited - 2008 (224) E.L.T. 207 does not lay down the correct law and the same is overruled. 12. The main appeal is taken up for final hearing with the consent of the learned counsel appearing for the parties. 13. It is clear from the order which is impugned in this appeal that the order passed by the CESTAT is passed only on the principles laid down in the Division Bench of this Court in Commissioner of Central Excise v. Denso Kirloskar Industry Private Limited, 2008 (224) E.L.T. 207 and Tribunal has not gone into the merits of the case and following the judgment of the tribunal in the impugned order has held that, since the period of six months has expired from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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