TMI Blog2015 (11) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... had discussed the issue in detail and also relied Supreme Court case laws. - any decision on debatable point of law cannot be treated as ‘mistake apparent from record’. - we do not find any apparent and manifest mistake in the Tribunals final order so as to exercise the powers to recall or modify the final order - Rectification 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 Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 (18) STR 84 (SC) 3. On the other hand, Ld. A.R vehemently opposed the applications and there is no mistake apparent on record on thier grounds 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 order. Appellant cannot seek, in the name of rectification of mistake, to re-appreciate the findings. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rete (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 rectification application, we are of the view that the CESTAT exceeded its powers given to it under the provisions of Section 35C(2) of the Act. This Court has already laid down law in the case of T.S. Balram v. M/s. Volkart Brothers, 82 ITR 50 to the effect that a mistake apparent from the record cannot be something which can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 22. For the aforestated reasons, we are of the view that the CESTAT exceeded its powers and it tried to re-appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compulsion for non-compliance of payment of pre-deposit. In my considered view, interim orders of such kind normally granted in appeals, after the appeals are entertained by the courts cannot be equated to an order dispensing with the payment of pre-deposit. In these cases, the interim order passed by the Tribunal is only in respect of 25% of the demand made and regarding the balance 75%, it is the statutory obligation under Section 129-E of the Act for the petitioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rejected these applications on different grounds and even assuming that the grounds on which the applications have been rejected by the Appellate Tribunal are not sustainable, in my considered opinion, the ultimate orders rejecting the applications cannot be interfered with inasmuch as the applications ought not to have been entertained by the Appellate Tribunal for want of jurisdiction. In such circumstances, I do not find any reason to interfere with the impugned common orders passed by the appellate tribunal. Further, we rely the Hon ble Supreme Court decision in the case of CCE Calcutta Vs A.S.C.U.Ltd. - 2003 (1510 ELT 481 (SC) wherein the Apex Court held that any decision on debatable point of law cannot be treated as mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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