TMI Blog2016 (5) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... OM/10155,10173/2016 In Appeal No. : C/10181,10182/2016 - Order No. M/10233-10234/2016 - Dated:- 12-5-2016 - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MR. P.M. SALEEM, MEMBER (TECHNICAL) For the Appellant : Shri H.D. Dave, Advocate For the Respondent : Shri T.K. Sikdar, Authorised Representative ORDER PER : MR. P.M. SALEEM These Rectification of Mistake applications have been filed by Shri Rameshwar Sharma and Shri Suresh Sharma in respect of Final Order No. A/10098-10100/2016 dated 12.02.2016. 2. Heard both sides and perused the records. 3. The applicants in the subject ROM application have contended that there is error apparent on record in the aforementioned order of the Tribunal dated 12.02.2016 inter-alia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating that there were valid reasons for the same. (vii) The observation of the Tribunal for imposition of penalties is on presumption which is not legally sustainable. 4. From the facts of the case, it appears that Shri Anil Gadodia was alleged to have supplied red sanders to Shri Rameshwar Sharma who are exporters and from whose consignments 'red sanders' were recovered. Shri Suresh Sharma is the employee of Shri Rameshwar Sharma. Hence the role of each of them is different and the evidences have to be evaluated in that context. The proposals and the provisions of the sections invoked against them are also different. It is observed that the Tribunal in the impugned order has examined the evidences and appreciated and anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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-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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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