TMI Blog2013 (4) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ther relevant facts tribunal do not find any error apparent on the face of the record which may call for indulgence of the Tribunal under Section 35C(2) of the Central Excise Act, 1944. This application is nothing but abuse of process of law and it appears to have been moved with mala fide intention to delay the proceedings. Accordingly, the application is dismissed with cost of Rs. 1 Lakh to be deposited with the concerned Commissioner within a month. - E/2548/2009 - Misc. Order No. 930/2012-EX(BR)(PB) - Dated:- 23-8-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri P.K. Sahu, Advocate, for the Appellant. Shri M.S. Negi, DR, for the Respondent. ORDER The petitioner/appellant vide instant application under Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketable as such not excisable. Thirdly, it is contended that order of remand is not justified because the evidence/facts relevant for deciding about the applicability of exemption notification are available on record and the Tribunal itself could have looked into those facts and decided the matter. 3. Before adverting to the above submission by the ld. Counsel for the appellant, it would be useful to have a look on the law relating to the scope and power of the Tribunal to rectify/modify Its own order. Section 35C(2) of the Central Excise Act, 1944 deals with the power of the Tribunal to rectify mistake in its own order and it reads thus :- SECTION 35C. (2) The Appellate Tribunal may, at any time within [six months] from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is because the final opinion could also have been based on the other material which was relevant and which could be used . 5. In the matter of Assistant Commissioner of Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. Reported in 2008 (230) E.L.T. 385 (S.C.) = 2010 (18) S.T.R. 84 (S.C.) Hon ble Supreme Court had an occasion to interpret the meaning of the error apparent on record and the Supreme Court observed thus :- 37. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of quantifying the excise duty. It is seen from the reply to the show cause notice that in the reply the appellant disputed the proposed classification under heading 8425 and claimed that launching trusses are classifiable under Heading 7308 which plea of the appellant/petitioner has been accepted in the final order. From this it is apparent that the appellant/petitioner all through was contesting the show cause notice on the plea that launching trusses are classifiable under Heading 7308 besides the other pleas. Thus, it cannot be said that the appellant has been prejudiced in his defence. As such we do not find any error apparent on the record by remanding the matter for fresh adjudication instead of dropping the demand. It may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of plea of the appellant that design of launching trusses fabricated is site specific and launching trusses fabricated at a particular site cannot be used at any other site and after couple of users the same is to be dismantled and sold as a scrap. This plea of the appellant/petitioner relates to the factual aspect which requires evidence as well as appreciation of facts to decide about the applicability of exemption Notification No. 3/2005-C.E., dated 24-2-2005 has not been discussed by the Commissioner in the impugned order. Therefore, remand order cannot be said to be the result of error apparent on record. 10. In view of the discussion above, we do not find any error apparent on the face of the record which may call for indulgence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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