TMI Blog2017 (8) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... istake of tribunal was completely misconceived and not tenable in eye of law. There was, therefore, no cause of action whatsoever for allowing the application, which would have given no jurisdictional facts to the tribunal for exercising any power under Section 35 C (2) of the Central Excise Act. Hence, the order passed by the tribunal on the application recalling the order dated 29th September 2016 is patently erroneous and not tenable in eye of law and is required to be quashed and set aside. Petition allowed - decided in favor of petitioner. - SPECIAL CIVIL APPLICATION NO. 12491 of 2017 - - - Dated:- 9-8-2017 - MR. S.R.BRAHMBHATT AND MR. A.G.URAIZEE, JJ. For The Petitioner : Amal Paresh Dave, AdvocatE And Mr Paresh M Dave, Advocate For The Respondent : JAIMIN A GANDHI, ADVOCATE And ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. Heard learned advocates for the parties. As the entire issue was in a very narrow compass, the Court was requested to decide the matter finally so as to avoid the time being consumed for admitting the matter and posting it for final hearing. Accordingly, the matter was takenup for final disposal. Hence, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s because the trade claimed that the goods were articles of plastic classifiable under Chapter 39 of the Central Excise Tariff, whereas the view of the Revenue was that they were textile goods classifiable under Chapter 54 of the Tariff. 3.2 In view of dispute of classification, the petitioner company paid central excise duty under protest on HDPE Tapes under Chapter 54 Heading 5406.90. The Central Board of Excise and Customs issued a Circular/order clarifying that these goods were classifiable under Chapter 39 of the Tariff, in view of several decisions and judgments holding that HDPE Tapes (and also other goods like HDPE fabrics and bags) were articles of plastic falling under Chapter 39 of the Tariff. The dispute of classification was thus resolved in favour of the trade. The petitioner company filed refund claims which were sanctioned by the Assistant Commissioner, but the amount was ordered to be transferred to the Consumer Welfare Fund on the ground of unjust enrichment. The said appeal against the above order was allowed by the Commissioner (Appeals) who held that the refund claim was not hit by doctrine of unjust enrichment. The refund was paid in the petitioner's fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th July 2009. Against the said order, the appeal of the petitioner before the Commissioner (Appeals) was rejected vide OIA No.192 of 2010. Against the said order, petitioner company filed Second Appeal No.E/1483/2010 with a stay application. The stay application was allowed on 8th August 2011 by observing that recovery of amount of interest on delayed refund was the subject matter of the previous appeal No.E/1585/2009 also wherein stay on merits was allowed; and directed the Registry to connect this subsequent appeal No.E/1483/2010 with appeal No.E/1585/2009 for disposal. The appellate tribunal heard Appeal No.E/1585/2009 and allowed the appeal of the petitioner on merits by delivering a detailed judgment by holding that the petitioner was legally entitled to interest on delayed refund in view of Section 11BB of the Act and also because of several judgments rendered by the Courts of Law including the Hon'ble Supreme Court. However, the other Appeal No.E/1483/2010 was not listed with the above referred main appeal and hence this subsequent appeal was not decided along with. As there was a typographical error about a date in the final order dated 29th September 2016, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tagged one more appeal involving the same issue with the appeal which was heard and decided on merits. The power to correct any mistake apparent on record can be exercised only when there was any such mistake in the order made by the Appellate Tribunal, but not because of an error of the Registry, and that too when the only error of the Registry was not putting up two cases together for disposal. 3.7 The only prayer in the Revenue's Misc. Application was to pass appropriate further orders on the appeal which apparently meant that the other appeal which was not put up for hearing with appeal No.1585/2009 was also required to be decided on the basis of the final order passed on merits of the case; and therefore, the appellate tribunal could not have accepted the oral submission of the Revenue's representative for recalling the final order made on merits of Appeal No.E/1585/2009. The petitioner suffers a grave prejudice by virtue of the impugned order of the Appellate Tribunal because the appeal heard and decided on merits is now ordered to be heard again, and the final order on the appeal passed in the petitioner's favour on merits after a full fledged biparte hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax, Banglore Vs. Mc Dowell and Co. Ltd., reported in 2015 (329) E.L.T. (Kar.). 3. CCE, Jaipur Vs. Hindustan Zinc Ltd., reported in 2015 (318) E.L.T. 614 (SC). 4. CCE, Belapur, Mumbai Vs. RDC Concrete (India) Pvt. Ltd., reported in 2011 (270) E.L.T. 625 (SC). 8. Mr.Jaimin Gandhi, learned advocate for the respondent no.3 invited Court's attention to the order dated 8th August 2011 and submitted that that order was passed by the Division Bench of the tribunal and therefore, the same could not have been overlooked or ignored by the Single Judge Bench, which was rendering the decision on 29th September 2016 in Appeal No.E/1585/2009 and therefore, the error which was apparent on the face of record was required to be rectified and therefore, the department was justified in allowing the application under Section 35 C (2) of the Central Excise Act, 1944. 9. Learned advocate for the respondent no.3 invited Court's attention to the decision of Bombay High Court in case of Conwood PreFab Pvt. Ltd., Vs. Union of India, reported in 2008 (224) E.L.T. 37 (Bom.) with specific emphasis on paragraph nos.2 and 4 and submitted that the error appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, which otherwise is conspicuous lacking in the statutory provision of the Central Excise Act. 12. The Court is of the considered view that the entire application, which was made in the month of March 2017 in which the department sought to rectify the mistake of tribunal was completely misconceived and not tenable in eye of law. There was, therefore, no cause of action whatsoever for allowing the application, which would have given no jurisdictional facts to the tribunal for exercising any power under Section 35 C (2) of the Central Excise Act. Hence, the order passed by the tribunal on the application recalling the order dated 29th September 2016 is patently erroneous and not tenable in eye of law and is required to be quashed and set aside else it would amount to exercise the review power, where there was no pleadings whatsoever qua the merits or any error apparent on the contention and/or reasoning of the order, which is dated 29th September 2016 allowing the Appeal No.E/1585/2009. The Court hastened to add here that these are the observations only to examine the order under challenge and it would have no bearing whatsoever upon the contention of the department on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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