TMI Blog2017 (11) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... e the concerned Court or Tribunal. Unless what is recorded is corrected by the same Court or Tribunal, the Higher forum which deals with an appeal or a revision will have to proceed on the footing that the factual statements recorded in the impugned judgment are correct. Sub Section (2) of Section 35C gives a specific remedy to a party to appeal to apply for rectifying mistakes apparent from the record. As in the order passed in the rectification application, the main issue canvassed in the rectification application has not been gone into, it is not open for us to adopt inferential process and decide whether the said points set out in the rectification application were urged before the Appellate Tribunal - the Tribunal has committed an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1985. A Show Cause Notice was issued on 3rd September, 1993 by the Collector of Central Excise, Bombay to the appellant calling upon the appellant to Show Cause as to why credit of Modvat taken during the period 1st August, 1988 to 31st January, 1990 on the basis of Subsidiary Gate passes / Certificates (SGPs), should not be denied. The notice was based on the allegations that it were only paper transactions and that the appellants willfully suppressed the facts. By the order dated 26th November, 1997 proceedings of the Show Cause Notice were dropped by the Additional Commissioner of Central Excise. 4. Thereafter, another Show Cause Notice was issued on 24th March, 1994 by the Collector of Central Excise to the appellant calling upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on 17th April, 2006 by which the same was dismissed. He submitted that the rectification application is not decided on merits as the contentions raised therein have not been considered. He submitted that there is no finding recorded by which the submissions which were specifically pointed out in the rectification application were not made before the Tribunal. He submitted that the impugned judgment and order is vitiated as material submissions made on factual aspects have not been adverted to by the Appellate Tribunal. He submitted that either appellant will have to be permitted to argue this appeal by urging the contentions which are set out in the application for rectification or the appeal before the Appellate Tribunal will have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 2 of the rectification application were made before the Tribunal is not at all considered in the said order dated 17th April, 2006. 11. Law is well settled. When a Court or a Tribunal records that a particular submission was made across the bar, the correctness of the recording as to what transpired before the Court or Tribunal cannot be gone into by a higher forum in Appeal or Revision. If it is recorded that a particular submission was canvassed, it is a recording of what transpired before the concerned Court or Tribunal. Unless what is recorded is corrected by the same Court or Tribunal, the Higher forum which deals with an appeal or a revision will have to proceed on the footing that the factual statements recorded in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal incorporates brief summary of the submissions made across the bar. 16. In normal course, we would have remitted the Application for rectification for fresh hearing before the Appellate Tribunal. But now, we are informed that both the learned members of the Appellate Tribunal are no more the members. As per the Central Excise and Service Tax Appellate Tribunal (Procedure) Rules and in particular Rule 31A, an application for rectification is required to be heard by the same members. Now it cannot be done with the passage of time. Therefore, to avoid possibility of any prejudice to the appellant, it will be appropriate if by setting aside the impugned judgment and order, the Appellate Tribunal is directed to hear the appeal afres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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