TMI Blog2011 (7) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... could also have been based on the other relevant aspect of law and fact which were considered to be relevant and which could be used - When the Larger Bench decision goes back to Division Bench for consideration of appeal for decision, the material facts, evidence, surrounding circumstance, law applicable shall govern the decision of Division Bench instead of the Division Bench merely guided by opinion of Larger Bench. - 470/2010, 487/2010 - ST/113-114/11 - Dated:- 8-7-2011 - R M S Khandeparkar, M Veeraiyan, D N Panda, JJ. Present for Revenue: Shri Sumit Kumar, DR Present for Intervener: Shri P K Sahu, Adv. Per: D N Panda: 1.1 MA (ROM) No.29/2010 listed along with this bunch was dismissed separately for non-prosecution. 1.2 One of the interveners viz., M/s Larsen Toubro Ltd. (which was before the Tribunal in Misc. Application No. 74 of 2009 in the Reference) became unsuccessful before Hon'ble High Court of Delhi in the writ petition No.WP(C)3947 of 2010 disposed on 09.8.2010 challenging the larger bench decision dated 06.05.2010 in the case of CCE, Raipur Vs. M/s B S B K Pvt. Ltd in Service Tax Appeal No. 100 of 2005 [issued vide Misc. Order No. 41/2010 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in Jyoti Ltd. case (supra) following the ruling of Hon'ble High Court of Delhi in P. C. Puri V. CIT, Delhi -2 - 1985(151) ITR 584 (Del). If at all reference was necessary, the Bench would have referred the matter to a five Members Bench. The decision in P. C. Puri's case (supra) was erroneously cited in Para 3.6 of the order where ratio of that decision had no relevance. 2.2 Further contention of the learned Advocate for Interveners was that decision of Hon'ble High Court of Delhi was misplaced and argument on jurisdiction was not addressed. 2.3 It was further contended that the Referring Bench extracted Paragraphs 41. 42, 44 and 45 of judgment in Bharat Sanchar Nigam Limited V. UOI - 2006 (4) SCC 1 but omitted paragraph 43 of the said judgment wherein the Apex Court held that the principles of indivisibility of composite works contract survived the 46th Constitutional amendment for purposes other than sales tax. 2.4 It was also contended that in Para 3.3. of Larger bench order, Para 45 of the Judgment in BSNL case (supra) was extracted under mistake instead of extracting Para 43 thereof and arrived at an erroneous conclusion. 2.5 According to Interveners all judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reference as aforesaid. Present two Misc. Applications are by two interveners M/s Alstom Projects India Ltd and M/s SEPCO Electric Power Construction Corporation. These two interveners choose to file Misc. Applications dated 17.06.2010 and 11.06.2010 respectively, while the third one chose to seek writ remedy before the Hon'ble High Court of Delhi as aforesaid. All the three interveners were represented by the same Advocate at the stage of reference hearing and even two of them are represented today by him. So also the writ petitioner was represented before the Hon'ble High Court by the same Advocate. 6 Hon'ble High Court hearing the writ application of Larsen Toubro Ltd. held in Para 13 of the judgment reported in 2010-TIOL-714-HC-DEL-ST that if the intervener is affected by an order passed by the Division Bench of the Tribunal, he can also take recourse to file an appeal before a superior forum as provided in the statute. Accordingly, present two interveners are not in a different footing then the writ petitioner-intervener. Therefore these two applicants are also governed by the same principle for which these two Misc. Applications are liable to be dismissed, following th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he President u/s 129C(5) of the Act, to constitute a Larger Bench to resolve the difference. It therefore follows that a Bench of two members who by a reasoned order had pointed out what they perceive to be an error of law in the earlier decision and stated the points for the President to make a reference to a Larger Bench. The referral order demonstrating the error of law in earlier decision causing impediment to the perception of correct law and fact by the disagreeing Bench as well as points that require to be stated for the president to make a reference to a Larger Bench call for resolution of the difference as has been held in the case of Govindram Agarwal v. Collector of Customs - 1993 (67) E.L.T. 215 (Cal). Difference is precondition for reference and section 129C (5) allows members of the Tribunal to recommend to the president only when there is difference of opinion. 7.4 In ST Appeal No, 532 of 2006 in the case of M/s. Guljag Industries Ltd v. CCE, Jaipur (2009-TIOL-856-CESTAT-DEL), ST Appeal No. 32 of 2007 in the case of Agauta Sugar Chemicals v. CCE, Noida - 2007 (8) S.T.R. 138 (T) and in ST Appeal No. 88 of 2007 in the case of Jaipur Glass Potteries v. CCE, Jaipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by Hon'ble High Court due to dismissal of Writ Petition of Larsen and Toubro. Though apparently claimed that the applications are for rectification of mistake those are really review applications in disguise. In the case of ASSISTANT COMMISSIONER OF INCOME TAX, RAJKOT Vs SAURASHTRA KUTCH STOCK EXCHANGE LTD - 2008-TIOL-170-SC-IT, It is held that well-settled law is that the power of review is not an inherent power. Right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed, in Patel Narshi Thakershi Ors. V. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, dealing with the provisions of the Saurashtra Land Reforms Act, 1951 and referring to Order 47, Rule 1 of the Code of Civil Procedure, 1908, Apex Court held that there is no inherent power of review with the adjudicating authority if it is not conferred by law. The view in Patel Narshi Thakershi has been reiterated by Apex Court in several cases. 8.2 Like the expression 'mistake apparent from the record' a similar expression 'error apparent on the face of the record' came up for considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." 8.5 An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long- drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record. 8.6 It is, of course, not easy to define or adequately describe what an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of Apex Court in the case of Commissioner of Central Excise, Calcutta v, ASCU Ltd. - 2003 (151) E.L.T. 481 (S.C.) wherein it has been held that rectifiable mistake is a mistake which is obvious and not something which has to be established by long drawn process of reasoning or where two opinions are possible. It has also been held that decision on debatable point of law cannot be treated as "mistake apparent from record". 8.9 "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. 8.10 "Apparent" means visible; capable of being seen, obvious; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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