TMI Blog2018 (9) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... al and during the course of arguments Appellants have raised the issue of limitation and has after considering the submissions have given a finding of fact that extended period of limitation has been rightly invoked. Now this finding of fact is sought to be rectified by this application for rectification of mistake. The powers vested in tribunal in terms of Section 35C(2) are very limited to rectification of mistakes without re-appreciating the entire facts, evidences and law on the subject matter of appeal. There are no merits in the applications for rectification of mistake filed in terms of Section 35C (2) of the Central Excise Act, 1944 in the present case - ROM application dismissed. - Application No. ST/ROM-85347, 85254/2018, Appeal No. ST/87596/2013 & ST/87302/2015 - M/85721-85722/2018 - Dated:- 11-7-2018 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri V. Sridharan, Sr. Advocate for Appellant Ms. P.V. Shekhar, Jt. Commr. (A.R.) for respondent ORDER Per: Sanjiv Srivastava, These Rectification of Mistake applications are directed against Final Order No A/90157-90158/17/STB dated 12.10.2017 passed by Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation to clothe the President of the Tribunal with arbitrary powers. Such an intention cannot be imputed in framing Rule 31-A. 9. The order passed under Rule 31-A will have the impact of altering, amending or modifying the final order. We are of the view that a final order passed by a Bench of three Members cannot be modified or altered or amended by a Bench consisting of lesser Members. A Full Bench is superior to a Division Bench and a Division Bench to a single Member Bench. The object for constituting a Division Bench or Full Bench, is the fact that multi-Member tribunals create the opportunity for mature deliberation which improves and enhances individual decision making by adding perspectives and excluding or at least minimizing faulty reasoning. Judicial propriety and fairness require, that so long as it is possible and feasible, the same number of Members should constitute the Bench to hear the rectification proceedings as well. It is also prudent and pragmatic and will avoid chaos. In the above perspective, we hold that the majority decision of the Customs, Excise and Gold (Control) Appellate Tribunal appealed against, is erroneous in law and so unsustainable. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58], Tara Rope Works Vs Commissioner Central Excise [1992 (61) ELT 282 (T)] and Unique Resin Industries Vs Commissioner Central Excise [1994 (74) ELT 587] and submitted that crucial points actually urged at the time of hearing and mentioned in the grounds of appeal as well as in written submission also, but have not been dealt with in the order, would be mistake apparent from record, justifying recall and rectification of the said order. 3.3 Relying on R A Bogga Vs Appellate Assistant Commissioner Income Tax [1977 (110) ITR 1 (P H)(FB)], he submitted that the test to determine a mistake apparent from record is not the complexity of the issues but the simplicity of the mistake. 3.4 He further relied on the decisions in case of Aldo Pharmaceuticals Vs CCE Jaipur 1995 (76) ELT 7 (SC), International Electron Devices Pvt Ltd Vs CCE [1995(80) ELT 11(SC)] Art Rubber Industries Ltd Vs Collector [1996 (83) ELT A 38 (SC)] and stated that when a plea has been raised before the Hon'ble CESTAT but has not been considered by it, the proper forum to urge that aspect is not the Supreme Court or High Court but the Hon'ble CESTAT itself. 3.5 He relied on the decisions in case of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within 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 sub-Section (1) and shall make such amendments if the mistake is brought to its notice by the Principal Chief Commissioner of Central Excise or Commissioner of Central Excise or the other party to the appeal: 6. From the wordings used in the Section it is quite evident that Appellate Tribunal can rectify any mistake apparent from record by amending the order passed by it. For invoking the jurisdiction under this section it has to be shown that what is being rectified is a mistake apparent from record. The phrase mistake apparent from record has been considered by the Supreme Court in case of Assistant Commissioner Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange [2008 (230) E.L.T. 385 (SC)] 37. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because another finding or conclusion was possible. Test and benchmark of perversity is far stringent and strict. Factual findings can be only interfered with when they are patently unreasonable, not supported by any evidence or are based upon extraneous and irrelevant material. Interference may be justified when the conclusions are based upon mere conjectures and surmises or where no person acting judicially and properly instructed under the relevant law could have come to the same decision and conclusion. In the current factual matrix, having noted the evidence and material before the Tribunal, the final conclusion arrived at, it cannot be said, that Tribunal's conclusion was based upon no evidence to support or was rationally not possible or entirely unreasonable. The conclusion is also not contradictory. Hon'ble Supreme Court has in its decision in case of JCIT SURAT VS. Saheli Leasing Industries Ltd. [2010 (253) ELT 705 (SC)]- Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on the mce of the record . The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record , for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent . A review 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 decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. If those mistakes are to be made out by process of argument such mistakes are outside the purview of Section 35C(2). Reference in this regard may be made to the decision of Supreme Court in Commissioner of Income-tax v. Hero Cycles Private Ltd., Ludhiana - (1997) 8 SCC 502. It would be seen that various grounds raised in the rectification of mistake applications related to factual and legal aspect which require reappraisal of evidence and this was not permissible and was not within the scope of Section 35C(2) of the Central Excise Act. Therefore, in my view, the order dated 25.01.2000 read with order dated 27.09.1999 cannot be quashed. 10. Hon'ble Supreme Court has in case of Commissioner Vs RDC Concrete (India) Pvt Ltd 2011 (270) ELT 625 (SC)] held as follows: 10. The learned counsel for the Revenue submitted that the CESTAT could not have changed its view as stated above because what was permissible to the CESTAT was only rectification of a mistake, if found apparent from the record. The interpretation with regard to the provision relating to the appointment of the Cost Accountant, which the CESTAT had accepted at an earlier point of time could not have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax, Delhi, 2008(221) ELT 11 and of Saci Allied Products Ltd. v. Commissioner of C. Ex., Meerut, 2005 (183) ELT 225. Thus, the learned counsel submitted that the CESTAT did not exceed its power and rightly rectified the mistakes which were apparent on the record while deciding the rectification application. 15. We heard the learned counsel at length and also considered the judgments cited by them and the orders passed by the CESTAT. 16. Upon perusal of both the orders viz. earlier order dated 4th November, 2008 and order dated 23rd November, 2009 passed in pursuance of the rectification application, we are of the view that the CESTAT exceeded its powers given to it under the provisions of Section 35C(2) of the Act. This Court has already laid down law in the case of T.S. Balram v. M/s. Volkart Brothers, 82 ITR 50 to the effect that a mistake apparent from the record cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably be 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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