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2015 (11) TMI 1238 - CESTAT CHENNAI

2015 (11) TMI 1238 - CESTAT CHENNAI - TMI - Rectification of mistake - Tribunal has not discussed Assessee's points and also not countered their case laws - Held that:- Tribunal can rectify any mistake apparent on record in the said order. Appellant claiming to reconsider the citations and also to draw findings on their contention amounts to seeking revisit the facts and findings of the Tribunal's order dt. 20.11.2014 which amounts to review of the order and there is no power vested with Tribuna .....

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ification denied. - Application No.E/ROM/40446, 40447/2015 in E/243, 244/2004 - MISC ORDER No.41414-41415/2015 - Dated:- 7-10-2015 - Shri R. Periasami, Technical Member And Shri P.K. Choudhary, Judicial Member For the Petitioner : Shri Subash Chandiran, Advocate For the Respondent : Shri L. Paneer Selvam, AC (AR) ORDER Per R. Periasami Appellant filed ROM applications against Tribunal's Final Order No.40828-40829/2014 dt. 20.11.2014 seeking for rectification of mistake. 2. Ld. Advocate appea .....

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. He also submits that Tribunal held that Horn Controller was part of horn, whereas they have never advanced this argument. He further submits that non-discussion of their grounds and non-consideration of decisions cited by the appellant is also to be considered as mistake apparent on record. Therefore, he pleaded for rectification of mistake. He relied the following case laws :- (i) CCE Chennai-II Vs Sundaram Clayton Ltd. 2015 (317) ELT 433 (Mad.) (ii) Foto Flash Vs CST Bangalore 2008 (9) S.T.R .....

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rounds which is the findings of this Tribunal. As per CESTAT Rules any rectification of mistake/defect which is apparent on face of record can only be considered for rectification whereas in this case appellant is seeking to re-appreciate the findings of the Tribunal s order which amounts to review of order which is not acceptable and impressible in law. He submits that Tribunal has no power to review its own order and submits that Tribunal after considering the submissions passed the said final .....

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of mistake in the final order dt.20.11.2014 of the Tribunal. Vide final order dt.20.11.2014, this Bench upheld the impugned order and dismissed the appeal. The appellant mainly contended in the grounds of ROM application that this Tribunal has not considered the case laws relied by the appellant and also that the Bench has not given findings on the appellant's contentions. It is pertinent to state that Tribunal can rectify any mistake apparent on record in the said order. Appellant claiming .....

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s. 5. In this regard, the Honble Supreme Court in the case of CCE Vs RDC Concrete (India) Pvt. Ltd. clearly held that re-appreciation of evidence done by CESTAT cannot be considered as rectification of mistake and held that the ROM order is bad in law and quashed the order. The relevant paragraphs of Supreme Court order is reproduced as under : 16. Upon perusal of both the orders viz. earlier order dated 4th November, 2008 and order dated 23rd November, 2009 passed in pursuance of the rectifica .....

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nnot be a mistake apparent from the record. If one looks at the subsequent order passed by the CESTAT in pursuance of the rectification application, it is very clear that the CESTAT re-appreciated the evidence and came to a different conclusion than the earlier one. At an earlier point of time, the CESTAT came to a conclusion that the company to which the respondent-assessee sold its goods was an inter-connected company. In the circumstances, according to the CESTAT, the decision of the departme .....

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he companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rec .....

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t the CESTAT exceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal view taken earlier in pursuance of a rectification application. In our opinion, the CESTAT could not have done so while exercising its powers under Section 35C(2) of the Act, and, therefore, the impugned order passed in pursuance of the rectification application is bad in law and, therefore, the said order is hereby quashed and set aside. The appeal is allowed with no order as to costs. The .....

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der Rule 41 of the Appellate Tribunal [Procedure] Rules, the Appellate Tribunal has got power to entertain such applications. Rule 41 reads as follows :- Orders and. directions in certain cases. - The Tribunal may make such orders to give such directions as may be necessary or expedient to give effect or in relation to its orders to prevent abuse of its process or to secure the ends of justice. 13. In my considered opinion, this rule also does not empower the appellate tribunal to recall a final .....

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itioner to deposit. Since the petitioner did not discharge such statutory obligation under Section 129-A of the Act in respect of 75% of the payment, the appellate tribunal was right in rejecting the appeals. 14. The learned counsel would further add that when once such finality has been reached, by invoking Rule 41, the same cannot be recalled. The purpose of Rule 41 is not to nullify the order where finality has been reached in the proceedings. Therefore, Rule 41 does not come to the rescue of .....

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the petitioners to file applications subsequently under Section 129-B(2) of the Act to recall the ultimate orders passed by the appellate tribunal rejecting the appeals. In my considered opinion, as I have already stated, if once the order regarding pre-deposit of the demanded duty amount under Section 129-E of the Act is not complied with, the appellate tribunal has got no other power or discretion except to reject the appeals. That is what has been rightly done by the appellate tribunal in th .....

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