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2016 (11) TMI 910 - CESTAT CHENNAI

2016 (11) TMI 910 - CESTAT CHENNAI - TMI - Power of CESTAT for Rectification of Mistake - warehousing of goods - impropriety of manner of drawal of sample - the evidences and records such as contemporaneous bills of entry, testing samples, warehousing of goods have not been considered by this Tribunal - Held that: - The Hon'ble Supreme Court CCE, Belapur, Mumbai Versus RDC Concrete (India) P. Ltd. [2011 (8) TMI 25 - SUPREME COURT OF INDIA] in the context of Rectification of Mistake has detailed .....

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Applicant Shri K. Veerabadhra Reddy, JC (AR) For the Respondent Per P.K. Choudhary This Rectification of Mistake petition is filed against the Final Order No.41730-41731/2015 dt. 23.12.2015 passed by this Tribunal. The contentions raised in the petition are as follows: a) that the CESTAT order though recorded that adjudicating authority has traversed beyond SCN, the order does not give a finding for the same. b) that the CESTAT order did not consider the various contemporaneous Bills of Entry p .....

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vidences and records such as contemporaneous bills of entry, testing samples, warehousing of goods have not been considered by this Tribunal. The Hon'ble Supreme Court CCE, Belapur, Mumbai Versus RDC Concrete (India) P. Ltd. - 2011(270) ELT 625 (SC) in the context of Rectification of Mistake has detailed out as to when a rectification of mistake can be undertaken. The relevant extract of the ruling is reproduced below: "16. Upon perusal of both the orders viz. earlier order dated 4th No .....

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e 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 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 .....

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CES TAT 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. " 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. .....

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on 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, and, therefore, the impugned order passed in pursuance of the rectification application is bad in law and, therefore, the said .....

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aterial, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been could be used - 2002 (12) TMI 87 - Supreme Court iv) Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record 2014 (9) TMI 774 - CESTAT (Mumbai) v) .....

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