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TMI Blog2014 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... in passing an order under Section 35C(2) of the Central Excise Act 1944 after a period of six months from the date of passing of the order under Section 35C(1)? 2. Whether in the facts and in the circumstances of the case, the impugned order of the Tribunal amounts to review of its own order dated 1-9-2004 and not simply rectification of a mistake? 3. Whether in the facts and circumstances of the case, the Tribunal is justified in recalling its entire order, which was earlier confirmed and thereafter holding that the extended period of limitation is not available and as a result thereof, reducing the duty of Rs.42,07,807/- to Rs.5,01,600/-?" 3. At the outset, Mr.Dharmadhikari, learned counsel for the Respondent-Assessee raises a preliminary objection in respect of maintainability of this appeal under Section 35G of the Act. This for the reason that the order dated 1 September 2004 of the Tribunal raises issues with regard to rate of duty and the Respondent-Assessee has already preferred an appeal therefrom to the Supreme Court under Section 35L of the Act and the same was admitted on 11 February 2005. 4. As against the above, Mr.Bhate, learned counsel for Revenue submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal after hearing the parties, allowed the application for rectification of the mistake and held that the longer period of limitation was not invocable in the present facts. Consequently, the duty demand was reduced by Rs.37.06 lakhs from Rs.42.07 lakhs. 7. Regarding Question - 1:- (a) The Respondent-Assessee made an application for rectification to the Tribunal on 27 December 2004. By the above application, the Respondent-Assessee sought to amend the order dated 4 September 2004. Therefore, admittedly the application has been filed within a period of six months under Section 35C(2) of the Act from the date of the order of final order passed under Section 35C(1) of the Act. (b) For the sake of convenience, we reproduce Section 35-C (2) of the Act which reads as under:- "(2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from record, amend any order passed by it under subsection (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal: Provided that an amendment which has the effect of enhancin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation could not have been entertained by the Tribunal beyond four years." (d) Therefore, in view of the Apex Court's decision in Sree Ayyanar Spinning and Weaving Mills Ltd. (supra), under the Income Tax Act identically worded to Section 35C(2) of the Act the question No.1 is answered in the affirmative i.e. against the revenue and in favour of the respondent-assesee. 8. Regarding Question Nos.2 and 3:- We take up question Nos.2 and 3 together as they over lap and submissions were also addressed by Counsel on both the questions together. (a) Mr.Bhate, learned counsel for the Revenue submits that the Tribunal being a creature of the statute viz: the Customs Act 1962 has not been bestowed with the power to review its orders. Therefore, the impugned order dated 20 December 2005 which amounts to review of the order dated 1 September 2004 is without jurisdiction. It is the case of the Revenue that under the Act, it can only rectify mistake on record and not reconsider an issue already decided. The remedy, if any, available to respondent- assessee is by way of an appeal to the higher forum and not to review an order. Mr. Bhate, further submits that the jurisdiction to rectify a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act is to rectify mistakes apparent from the record i.e. the mistake must be obvious and selfevident. The discovery of mistakes must not require a long process of reasoning. The question whether there is a mistake in the order sought to be rectified or not should not be a subject of debate. Once a mistake is brought to the notice of the Tribunal, it is duty bound to correct the mistake in its order, where an issue has been argued and/or submission made on the issue and the same is not recorded and/or considered in the order, it follows that there is a mistake apparent from the record. 10. In this case, the respondent-assessee in its application for rectification dated 27 December 2004, pointed out as under:- " The total demand of duty against applicant was raised for period -1-04-1992 to 03.09.1996 for which SCN was issued on 03-05-1997. The demand of duty was raised in terms of proviso to Section 11A of the Central Excise Act. The applicant specifically raised and argued the issue regarding limitation before the Commissioner as also in the memo of appeal filed before this Hon'ble Tribunal and during the hearing of appeal before this Tribunal. In the synopsis filed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o rectify its mistake. Similarly, in case of Bharat Bijlee Limited (supra), the failure of the Tribunal to consider the evidence on record and arguments made before it would justify exercising of powers to correct its mistake in exercise of powers under Section 35C(2) of the Act. 12. We find that the issue of limitation though argued before the Tribunal, was not considered while passing the order dated 1 September 2004. The decision relied upon by Mr.Bhate in the matter of Deva Metal Powders Pvt. Ltd. (supra) in fact very categorically holds that a mistake capable of being rectified is not confined to clerical or arithmetical mistake but any error apparent from the record. A mistake which can be rectified is one which is patent, obvious and whose discovery is not dependent on argument or elaboration. In this case, the Tribunal rectified its mistake in not having considered the issue of limitation earlier. In the process of rectifying its mistake it considered the issue of limitation for the first time which was not considered earlier. This consideration by the Tribunal was well within the exercise of its jurisdiction under Section 35C(2)of the Act to rectify a mistake apparent on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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