TMI Blog2017 (11) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Shri A.R. Madhav Rao, Advocate - for the appellant Shri H.C. Saini, D.R., Shri M.R. Sharma, DR - for the respondent ORDER Per: Ashok K. Arya M/s Mittal Pigments Pvt. Ltd. has filed this rectification of mistake (ROM) application inter alia stating that the imposition of ₹ 2 lakhs as penalty is not warranted, which was imposed by the Order-in-Original No.24/2013 dated 22.3.2013 under Rule 25 of the Central Excise Rules, 2002. 2. Both sides have been heard. 3. Ld. Advocate Shri A.R. Madhav Rao, on behalf of the applicant, M/s Mittal Pigments Pvt. Ltd. inter alia submits as follows: (i) Rule 25 of Central Excise Rules 2002 starts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. But when invoices were issued without delivery of goods with intention to evade duty, it cannot be said that the assessee was not concerned in selling or dealing with the goods. The applicant, therefore, is liable to pay penalties under Rule 25 of Central Excise Rules. Reliance is placed on Hon'ble Punjab Haryana High Court decision in the case of Vee Kay Enterprises Vs. CCE - 2011 (266) ELT 436 (P H). (ii) A debatable point of law in impugned order is not a mistake apparent on record. ROM application is not an appeal whereby an order could be re-heard and re-decided. Reliance is placed on Hon'ble Supreme Court's decision in the case of Airport Authority of India Vs. CCE - 2015 (322) ELT A232(SC). 5. After h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant. The Tribunal does not have the power of reviewing its own order in the guise of hearing an application for rectification of mistake. There is no prima facie or apparent mistake in the Final Order warranting any rectification or amendment in the same. The Tribunal in its Larger Bench in the case of Dinkar Khindria Vs CC, New Delhi - 2000 (118) ELT 77 (Tri.-LB) has held that rectification of mistake application is by no means an appeal in disguise whereby an order even if it is not valid, is reheard and redecided. Rectification of mistake application lies only for patent or obvious mistake; only in a case where the mistake stares one in the face and there could reasonably be no two opinions entertained about it, a case for rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patent mistake and observes as under: 5. The power of rectification of mistake under Section 129(B) of the Act is a limited power and this power is restricted to rectification of the mistakes apparent from the record calling for amendment of the order. Rectification means taking out mistakes from . A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points, on which there may conceivably be two opinions (refer Supreme Court's decision in the case of S. Balaram, Income Tax Officer Company Circle IV, Bombay v. M/S. Volkart Brothers Ors. - AIR 1971 (SC) 2204 (SC). A decision on a debatable point of law or facts is not a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich could be characterised as vitiated by error apparent . A reveiw is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares on in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. No questions of fact were involved in the decision of the High Court in T.R. Cs 75 to 77 of 1956. The en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistake which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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