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TMI Blog2008 (8) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Further aggrieved, the dealer opposite party filed second appeal before the Tribunal. The appeal was heard and decided by the order dated December 17, 1997 rejecting the claim of the dealer-opposite party for refund of the amount of Central sales tax deposited by it on the turnover of Rs. 1,37,01,378. Subsequent thereto, an application for rectification of a mistake in the said order was filed by the dealer-opposite party on the ground that it is entitled for refund of the Central sales tax wrongly deposited by it on the aforestated turnover. The Tribunal by the order under revision allowed the application and rectified its earlier order and accepted the claim of the dealer regarding refund of the Central sales tax on the aforestated amount. In the memo of revision, the following three questions of law have been sought to be raised: "(1) Whether the Tribunal was legally justified to refund the amount of the tax which has been realised and deposited inspite of the fact that the tax had become legally payable and section 29(3) prohibited such refund? (ii) Whether the Tribunal was legally justified to completely ignore a retrospective amendment made by U.P. Act No. 11 of 1997 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvisage rectification of error in judgment. It must be a mistake which will appear upon a glance at the record and not a mistake which emerges after a prolonged debate on the merits of the case. Reliance was placed on a decision of the apex court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360 wherein it was held that there is another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, elaborate arguments on questions of fact or law. Coming to the facts of the present case, it may be noted that the plea regarding refund of Central sales tax was examined and considered by the Tribunal in its parent order dated December 17, 1997 and was rejected vide para 4 of the order. While doing so, the Tribunal considered the judgment of Constitution Bench of the apex court in Kasturi Lal Harlal v. State of U.P. [1987] 64 STC 1; [1987] UPTC 135 and of this court in Bansal Caterers v. State of U. P. [1990] ATJ 889, Mahavir Machinery Corporation v. State of Uttar Pradesh [1991] 82 STC 345; [1990] ATJ 381 and Mohan Coal Traders v. State of U.P. STI 2458 and held that the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he turnover of rectified and denatured sprit along with the return. The said amount has been forfeited under section 29A of the Act. The only ground raised before the Tribunal earlier was that the said amount is refundable to the dealer-opposite party. It may be noted that earlier section 29A was, declared ultra vires but has been declared subsequently a valid piece of legislation. Placing reliance upon the judgment of the apex court in the case of Kasturi Lal Harlal [1987] 64 STC 1; [1987] UPTC 135 and other decisions, the Tribunal was of the opinion that section 29A has retrospective effect and will not entitle the dealer-opposite party to claim refund. Only this aspect was urged before it when the appeal was heard and decided on merits. By way of rectification application, altogether a new ground to claim refund was urged in the rectification application, i.e., the tax realised from the purchasers has been refunded to them by issuing credit vouchers and as such, the dealer is entitled for refund of the tax from the Department. This plea, as noted above, was never pressed into service before any of the authorities below including the Tribunal earlier. Sri Bharat Ji Agrawal, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord is rectifiable. In order to attract the application of section 22, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. 'Mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable of being seen, obvious; plain. It means 'open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming'. A mistake which can be rectified under section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. In our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of section 22 and, therefore, the High Court was not justified in holding that there was mistake apparent on the face of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icance so far as the scope and ambit of section 22 of the Act is concerned. The Supreme Court in the above case in express words has delineated the limited scope of section 22, as quoted above. The Tribunal while deciding the appeal earlier, had placed reliance upon certain decisions of the apex court and of this court as well, to take a particular view of law on the issue. The said view can be set aside or corrected in a properly constituted revision as provided by section 11 of the Act. But, in the guise of rectification application, it is not permissible to take a different view in a proceeding under section 22 of the Act even if it is wrong. A decision on a debatable point of law or disputed question of fact is not a mistake apparent on the face of the record. Viewed as above, the order of the Tribunal passed on rectification application is indefensible and the same is liable to be set aside. The rectification application so far as it relates to the refund of Rs. 5,48,055.62 is concerned stands rejected. It may be added that by the said order the Tribunal has corrected certain mistakes in respect of three forms C. No argument was advanced by the learned standing counsel in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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