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Ahmedabad Packaging Industries Ltd & 1 Versus Union of India & 2

2017 (8) TMI 596 - GUJARAT HIGH COURT

Power to review - scope of Section 35 C (2) of the Central Excise Act, 1944 - Classification of goods - HDPE Tapes - 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 - rectification of mistake - Held that: - The plain and simple reading thereof would clearly reflect that the tribunal does not have any power to review the .....

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th 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 ten .....

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arrow 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, Rule. Shri Jaimin Gandhi, learned advocate waives service of notice of rule on behalf of the respondent no.3. By consent, rule is fixed forthwith. 2. The petitioners have approached this Court by way of this petition under Article 226 of the Constitution of India with fo .....

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by the Petitioner herein for correction of a typographical error in final order No.A/11063/2016 dated 29.9.2016 with a further direction and order thereby holding and declaring that this final order No.A/11063/2016 dated 29.9.2016 subsists as regards decision on Appeal No.E/1585/2009 with correction of the above referred typographical error; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the Appellate Tribunal from hearing and deciding .....

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d exercise of power under Section 35 C (2) of the Central Excise Act, 1944 recalling the order dated 29th September 2016, wherein the appeal being Appeal No.E/1585 of 2009 had been allowed on merits. 3. The facts in brief as could be culledout from the memo of the petition and annexures deserve to be setout as under in order to appreciate the controversy. 3.1 That the petitioner is engaged in manufacture of HDPE Tapes, which are excisable goods. The raw materials used by the petitioner are HDPE .....

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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 .....

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mmissioner passed a fresh order and held that the petitioner company had not passed on incidence of duty to the customers and therefore the claim was not hit by unjust enrichment. The revenue's appeal against the above order was rejected. The said order has been accepted by the revenue and it is thus a concluded matter that the petitioner has not passed on the incidence of duty paid under protest to any other person and that the refund claim of the petitioner was not hit by unjust enrichment .....

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bunal remanded the case back to the Commissioner (Appeals) who passed OIA No.116/2009 and held that the petitioner's claim for interest on delayed refund was not sustainable. On the stay application filed by the petitioner company with a substantive appeal No.E/1585/2009 before the Appellate Tribunal against the above OIA No.116/2009 of the Commissioner (appeals), a stay order was passed by the Appellate Tribunal granting unconditional stay in view of the prima facie case made out by the pet .....

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ing was only a duplication of the case because recovery of interest paid to the petitioner was ordered by Commissioner (Appeals) vide OIA No.116 of 2009 dated 27th 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 inter .....

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o 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 petitioner company filed an application for rectification of mistake for correcting the typographical error of wrong date. 3.5 The revenue filed an .....

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for rectification of mistake together, and on oral submission of the revenue's representative that the final order passed on Appeal No.E/1585/2009 should be recalled because the other appeal No.E/1483/2010 was not listed together for disposal, the Appellate Tribunal has recalled the final order dated 29th September 2016 by which Appeal No.E/1585/2009 was allowed in the petitioner's favour and this order was made after hearing both the sides and on merits. While recalling the final order .....

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other appeal but the Registry had not placed such other appeal for hearing together with the case which was heard and decided on merits. If there was any error apparent in deciding the appeal and the final order called for any correction because of a typographical or clerical error or the like; then further orders could be made by the appellate tribunal correcting such error in exercise of power conferred under Section 35C (2) of the Central Excise Act. But, when there was no error in rendering .....

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ribunal, 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 tribuna .....

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of the efforts made by them for a decision on merits in that case. The order of the appellate tribunal recalling the final order made on merits after hearing both the parties on Appeal No.E/1585/2009 is therefore, exfacie illegal, impermissible and without jurisdiction. 4. Thus, being aggrieved and dissatisfied with the impugned order, the present petition is preferred on the grounds mentioned in the petition. 5. Learned counsel for the petitioners invited Court's attention to the fact that .....

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ery of socalled erroneous refund made on 8th August 2011 contained a direction to the registry of tribunal for hearing the said appeal along with appeal being Appeal No.E/1585/2009. Unfortunately, when the tribunal was hearing the Appeal No. E/1585/2009 the subsequent appeal being Appeal No.E/1483/2010 had not been listed and the matter being Appeal No.E/1585/2009 came to be disposed of on merits vide order dated 29th September 2016, which was absolutely just and proper order and nonhearing of t .....

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eadings of socalled mistake, which could not have been attributed to the tribunal at all. In that view of the matter, he urged the Court that the order dated 14th June 2017 impugned in this petition deserve to be quashed and set aside. 1. Roots Multiclean Ltd. Vs. CESTAT, Chennai, reported in 2016 (336) E.L.T. 25 (Mad.). 2. 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. 6 .....

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re, 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 app .....

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ard learned counsel for the parties and perused the proceedings. The provision of Section 35 C (2) of the Central Excise Act, 1944 require to be setout as under :Section 35 C (2) The Appellate Tribunal may, at any time within 2[six months] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1) and shall make such amendments if the mistake is brought to its notice by the 3[Commissioner of Central Excise] or the .....

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date on which such appeal is filed: Provided that where an order of stay is made in any proceedings relating to an appeal filed under subsection (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.] 11. The plain and simple reading .....

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rt 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 applicat .....

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