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TMI Blog1984 (5) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... ic was applied as a coating to the paper and this gave an appearance of colour to the paper. It is, therefore, not correct to say that a sheet of coloured plastic had been stuck to the paper to give it a coloured appearance. 2. He disputed the statement that the base paper had paid duty under Item 17(1) under Central Excise Tariff. The Department's argument on this had not found favour. There was an order of 1977 which had gone in favour of the manufacturer in respect of similar goods. He argued that rectification can be made When a point of submission had not been covered or dealt with. He cited in support of his submission, [1970] 75 ITR Income-tax Officer, Lucknow v. Singar Singh & Sons decided by the Allahabad High Court on 5th August 1969. By this judgment, the High Court ruled that the Tribunal had inherent powers to review its order in order to correct a wrong done to a party. In that case, the Income-tax Tribunal did not give a decision on the question of adjustments of standard profits. By this omission the Tribunal did wrong to the party and, therefore, said the High Court, it was necessary for it to review its own order, when such an order caused prejudice to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the learned Counsel for M/s. Entremonde makes so much of. A reply was received after the notice and there is nothing in it that would satisfy anyone that M/s. Entremonde thought the notice to be anything other than what it purport to be. It is well-known that such proceedings are preceded by references from Collectorates. But it does not mean that any notice as a result of such references is invalid or suffers from any deficiency or cannot be the basis for proceedings of this nature If the party is dissatisfied with the nature or the content of the notice it can always attack it and demonstrate its weaknesses and its insufficiencies. To say that the notice was issued as a result of the Collector's letter, is not an argument and there is no law that says a notice cannot be issued after such a letter. The party made no demand for any other documents nor asked for reasons why the show-cause-notice was issued. 7. The mistake apparent on the face of the record is not a mistake of judgment. The records relied upon in the proceedings were only those which were well-known to the party. Nothing had been hidden from it and nothing relied to its deteriment and prejudice. It is sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice by Collector of Central Excise or the other party to the appeal. 12. The relevant sub-section speaks of mistake apparent from the record. In other words, it should be a mistake that becomes obvious from reading the record of proceedings. A simple instance would be where the record of the proceedings says : a sum of ₹ 10,000/- was added to a sum of ₹ 20,000/-and the total arrived at was ₹ 50,000/-. Now it will be apparent to anybody that the total ₹ 50,000/- was a mistake because ₹ 10,000/- and ₹ 20,000/- can never add up to ₹ 50.000/-. The total should be ₹ 30,000/-. However, what M/s. Entremonde asks us is to correct the finding and say that the paper was coloured not by means of a plastic attached or glued to the paper but by coating the paper with coloured plastic. 13. When one reads the Assistant Collector's order one finds this sentence "In the instant case there is only coating of plastic materials on the paper and the printing activity is totally absent." A little further before this, this clause --appears the said plastic laminated paper is devoid of any printing of colour on the one side of it......". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assistant Collector and to disagree with the decision of the Appellate Collector. Of course, M/s. Entremonde does not agree with many of the things said by the Tribunal and by the Assistant Collector but that is not to say that a wrong had been done by this Tribunal to the appellant. 18. The learned Counsel for the Deptt. quoted the judgment of the Orissa High Court ITR Vol. 145 Pt. 2, dated 9-1-84 in the case of Jagabandhu Roul decided in November 1982. The Honourable Court decided very categorically that only a rectification of mistake could be done under Section 254 of Income-Tax Act and unless the power of review is statutorily conferred, the Tribunal cannot exercise it. What M/s. Entremonde wants now is not a rectification of error but that the Tribunal should come to a finding different from what it arrived at. As correctly pointed out by the learned Counsel for the Deptt., the so-called mistake was not a mistake apparent on the face of the record. In fact no mistake is apparent to us from the record. What the learned Counsel for M/s. Entremonde did was to argue his case afresh. In the event, to accede to the request for rectification would lead to a review and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory the show cause against it. Nothing can be more just and proper. The law does not forbid such an action nor can we find any fault with it. The so-called retrospective recovery was only the result of the above lawful actions. The Assistant Collector's order followed naturally from the show cause notice and was not an exercise of any arbitrary or uninvited powers. There was no retrospective action of the kind M/s. Entremonde has in mind. All demands of duty are retrospective. They are not impermissible for being so. We are surprised that M/s. Entremonde who understands Central Excise should make this proposition. We see no merit in it. 20. The application for rectification is rejected. 21. [Order per : M. Gouri Shankar Murthy]. - While I am in general agreement with the order proposed to be made in this application for rectification in terms of Section 35 (C) (2) of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), I would like to restate the scope of rectification in terms of the aforesaid provision and record my dissent from the observations in the penultimate para of the order proposed by my learned Brothers. 22. Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utorily conferred either expressly or by necessary implication and is nothing short of a rehearing of a decided case by the same officer who pronounced the judgment or order earlier. It is sufficient for our present purpose merely to notice the following dictum of Seshagiri Iyer J in AIR 1919 Madras 244 (Anantaraju Shetty v Appu Hegade)- "It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the statute. prima facie, a party who has obtained a decision is entitled to keep it unassailed, unless the legislature had indicated the mode by which it can be set aside. A review is practically the rehearing of the appeal by the same officer who decided the case. There is at least a good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another Tribunal should not hear an appeal from the trial court unless such power is given to it by statute." 25. Accordingly, a review differs from rectification and is much larger in scope than rectification. It is a rehearing of a decided case where evidence, not within the knowledge of the applicant despite due deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been drawn. Apart from the inapplicability of the said decision in the facts of the case before us, it does not appear, with respect, if it were not a clear case for reference under Section 256 of the Act in the view that a question of law arises even on those aspects of the case not touched upon by the Tribunal. Alternatively, in an application, possibly for the issue of a writ of mandamus or certiorari, the omission of the Tribunal was an error apparent on the face of the record, enabling the High Court, in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution, to quash the order of the Tribunal and direct the Tribunal to go into the issue it omitted to consider, rather than look for the jurisdiction of the Tribunal to do so and resorting, in the process, to the principle of "Actus Curiem neminem gravabit" 29. It. does not appear that the decision of the Orissa High Court in (1985) 145 ITR was cited before the Tribunal in (1984) E.L.T. 482 (Smt. Pratiba Rani Samanta v. Collector of Central Excise, Calcutta), so that the scope and meaning of a "Mistake apparent from the record" could have been considered. A decision on a question of locus st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the Applicant in a proceeding, judicial or quasi-judicial, although, may be due to an error, is one that requires rectification by way of restitution. A decision in any such proceeding cannot be said to have caused prejudice to one against whom it is rendered and no question of restitution arises, except by its reversal in appeal or in any other suitable proceeding against it. If this were not so, any adverse decision in judicial or quasi-judicial proceedings is prejudicial and can be reversed by the selfsame court or tribunal and the right of appeal against such decision is otiose. 31. If, therefore, a right of review is to be conferred by statute and there is nothing in Section 35 (C) (2) of the Act from which such a right could be inferred, could we, while disposing of an application for rectification on the ground, advert to an aspect of the case omitted from consideration altogether earlier, notwithstanding that we were not invited to refer or deal with it in the course of the application for rectification? In other words, do we get a second opportunity to make good our omission to consider an issue, not even adverted to earlier in the course of our judgment, when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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