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2016 (11) TMI 820 - CESTAT CHENNAI

2016 (11) TMI 820 - CESTAT CHENNAI - TMI - Rectification of mistake - there was no specific demand for interest in the adjudicating orders and it was raised only in the appellate stage - Held that: - reliance placed on the decision of the case of CCE, Belarpur, Mumbai Vs. RDC Concrete (India) P.Ltd [2011 (8) TMI 25 - SUPREME COURT OF INDIA] wherein it is detailed out as to when a rectification of mistake can be undertaken - it is held in the case that CESTAT should not exceed its powers and to r .....

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sible and thus the ROM Petition is rejected. - Application No.E/ROM/40407/2016 in E/323/2012 - MISC ORDER No.40420/2016 - Dated:- 8-9-2016 - Shri P.K. Choudhary, Judicial Member Shri R. Janardhanan Pillai, Consultant, For the Applicant Shri L. Paneerselvam, AC (AR), For the Respondent Order This rectification of mistake petition is filed against the Final Order No.40593/2016 dated 08.04.2016 passed by this Tribunal. The contentions raised in this petition are as follows:- (i) That this Tribunal .....

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ed by Shri L. Paneerselvam, A.C., Ld.A.R. 3. Heard both sides. 4. I have carefully gone through the records and submissions made by the applicant. The main grievance raised by the applicant is that there was no specific demand for interest in the adjudicating orders and it was raised only in the appellate stage. The Hon ble Apex Court in the case of CCE, Belarpur, Mumbai Vs. RDC Concrete (India) P.Ltd - 2011 (270) ELT 625 (SC) in the context of rectification of Mistake has detailed out as to whe .....

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o the effect that a mistake apparent from the recor cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been also held that a decision on a debatable point of law cannot 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 conclu .....

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e to a different conclusion to the effect that the assessee company and the buyer of the goods were not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the 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. 17. Similarly, in pursuance of the rectifying application, the .....

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hose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted a .....

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aged as a cost accountant. 18. We are not impressed by the judgments cited by the learned counsel for the respondent. So far as the judgment delivered in the matter of Saci Allied Products Ltd. v. Commissioner of C. Ex., Meerut, 2005 (183) E.L.T. 225 (S.C.) is concerned, it pertains to sale of goods by an assessee to an independent and unrelated dealers and its effect on valuation. The said judgment pertains to a transaction with a related person in the State of U.P., at lower price and as such .....

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the instant case, the evidence which was on record was duly appreciated by the Tribunal at the first instance but the Tribunal made an effort to re-appreciate the evidence and re-appreciation can never be considered as rectification of a mistake. We are, therefore, of the view that the aforementioned judgment would not help the respondent-assessee. 20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008 (221) E.L.T. 11 (S.C.), is .....

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stablished 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 .....

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