TMI Blog2011 (7) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... d exercise is essential to appreciate the facts and circumstances of the case. Such exercise is permissible only if an appeal is decided or power of review is exercisable which is not conferred on the Tribunal. It is, no doubt, true that a mistake capable of being rectified is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa (1965 -TMI - 100065 - SUPREME COURT OF INDIA), an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. 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 - Application is dismissed - Justice R.M.S. Khandeparkar, S/Shri M. Veeraiyan, D.N. Panda, JJ. Shri Sumit Kumar, DR, for the Appellant. Shri P.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing on behalf of the interveners summarily contends that for wrong noting of submissions made on behalf of interveners and for no consideration of other vital submissions and binding precedents of the superior Courts and Coordinate Benches, which are contrary to the Larger Bench s conclusion, errors became apparent from the Larger Bench decision reported in 2010 (253) E.L.T. 522 (Tri-LB) = (2010-TIOL-646-CESTAT-DEL-LB) which calls for rectification. 2.1 It was further contended that the Third Member decision in Jyoti Ltd. v. CCE, Vadodara - 2008 (9) S.T.R. 373 (Tri. - Ahd.) being a decision of Three Member Bench, the Larger Bench consisting of three members, was not proper to take a view different from the three Member Bench decision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dismissed. 3.3 The learned Advocate being the same advocate for the interveners before the Larger Bench, when one of the interveners i.e. Larsen and Toubro Ltd. went to Hon ble High Court of Delhi, whether they have mentioned before the Hon ble Court about pendency of present Misc. Application for rectification of mistake before the Larger Bench is in doubt. Consequent upon dismissal of writ petition as aforesaid, present applications are not maintainable for abusing the process of law. 4. Heard both sides and perused the record. 5. There were three interveners viz., M/s. Larsen Toubro Ltd. in MA No. 74 of 2010, M/s. Alstom Projects India Ltd. was in MA No. 405 of 2009 and M/s. SEPCO Electric Power Construction Corporation in MA No. 115 of 2009 before the Larger Bench of Tribunal in the 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 17-6-2010 and 11-6-2010 respectively, while the third one chose to seek writ remedy before the Hon ble High Court of Delhi as aforesaid. All the three interveners w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has neither power to record evidence nor power to re-appraise or re-evaluate evidence in absence of Appellate or Revisionary jurisdiction. It has to act within the ambit of the facts settled by the Division Bench. It also does not decide the lis between the parties. 7.3 According to the ratio laid down by the Apex Court in Paras Laminates case (supra) where members of a Bench find themselves are unable to decide a case according to what they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree, the Bench so disagreeing may direct the Registry to place such matter before President of the Tribunal to consider reference of such matter to a Larger Bench constituted by him by virtue of power which is implied in the express grant of authority on the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be referred to the Larger Bench and thereupon ask the registry to place the matter before the President to do the needful. 7.5 Aforesaid principles are in consonance with basic structure of law to maintain judicial discipline and judicial decorum. Tribunal being a creature of statute and subordinate judiciary is governed by Apex Court rulings and rulings of Hon ble High Courts and assists higher judiciary. The Larger Bench neither sitting on appellate nor revisionary nor review jurisdiction but merely acting on advisory or consultative capacity has been formed to answer the questions referred to it. 8.1 It was noticed that present two applications calls for reconsideration of whole case for substituting earlier decision of Larger Bench in reference by a new decision, that is impracticable since order of the Larger Bench was not interfered 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 v. Saurashtra Kutch Stock Exchange Ltd. - 2008-TIOL- 170-SC-IT. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Court stated that it may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. 8.4 In Satyanarayan Laxminarayan Hegde Ors. v. Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890, Apex Court referring to Batuk K. Vyas and Hari Vishnu Kamath stated as to what cannot be said to be an error apparent on the face of the record. It was observed that : An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an 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 ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glance to the order and should be apparent therefrom. Hon ble Supreme Court has time and again held that the rectifiable mistake must be patent mistake and discovery thereof is not from elaborate argument. For such proposition of law reference may be made to the decision in M/s. Mapco Industries Ltd. v. Commissioner of Income Tax Anr. reported in 2009-TIOL-121-SC-IT-LB. While deciding the case of M/s. Mapco Industries Ltd., Hon ble Supreme Court has also reiterated the law laid down in the case of Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, U.P. - 2008 (221) E.L.T. 16 (S.C.) = 2008 (9) S.T.R. 113 (S.C.) wherein it has been held that rectifiable mistake must exist and the same must be apparent from record. It must be a patent mistake which is obvious and which discovery is not depending on elaborate arguments. To the same effect is 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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