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TMI Blog2008 (4) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 5,000/- under Rule 173-Q of the Central Excise Rules, 1944. 2. Sub-section (2) of Section 35-C of the Central Excise Act provides that the Appellate Tribunal may, at any time, within six months from the date of the order, rectify any mistake apparent from the record and amend any order passed by it under sub-section (1) on application made in that behalf either by the Revenue or the other party to the appeal i.e. the assessee. In view of the limitation of six months within which the Appellate Tribunal may rectify any mistake in its order, it is clear that the application in this behalf has to be made within the period of six months. 3. The present application appears to have been listed before the Bench for the first time on 2-2-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into the question as to whether the application was filed within time, we are not able to appreciate the conduct of the appellant in not pursuing the application for over six years until they sent the aforesaid letter dated 18-12-2006 which led to 'reconstruction' of the record. If the applicant had indeed filed the application within time i.e. in the year 2000, in the ordinary course, as a prudent litigant, they would have followed up the matter in right earnest. 5. Be that as it may, the question which we propose to address and consider is whether the application is maintainable within the frame work of sub-section (2) of Section 35-C of the Act. Though we have referred to the provision at the outset, it may be quoted verbatim as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (10) STR 103 (Guj.) (ii) Commissioner of Central Excise, Mumbai v. Bharat Bijlee Ltd., 2006 (198) E.L.T. 489 (S.C.); (iii) Commissioner of Income Tax v. Keshav Fruit Mart, 2005 (191) E.L.T. 147 (All.) (iv) RPG Life Services Ltd. v. Union of India - 2005 (187) E.L.T. 433 (Guj.); (v) Bharat Metal Box Co. v. CEGAT, Madras -1998 (98) E.L.T. 68 (A.P.); (vi) Aarpee Electricals (P) Ltd. v. Commissioner of Central Excise, Bangalore, 2005 (189) E.L.T. 437 (T. Bang); (vii) Commissioner of Central Excise, Chandigarh v. Autocratic Indus. Ltd., 2004 (177) E.L.T. 1110 (T.-Del.); (viii) Chinttapurni Engg. v. CCE, Lucknow, 2003 (158) E.L.T. 535 (T-Del.); and (ix) H.P.L. Chemicals Ltd. v. CCE, Chandigarh-I, 2003 (154) E.L.T. 435 (T. Del). 8. A sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35-C (2) of the Act. Keshav Fruit Mart (supra) too was a reverse case. Though the ground had been taken in the memorandum of appeal and argued, the Tribunal did not at all consider the ground. The Tribunal later set aside the order and fixed the case for re-hearing. The High Court declined to interfere with the Tribunal's order. In the case of RPG Life Sciences Ltd. (supra) the High Court found that the Tribunal had failed to take into consideration the decision of the Supreme Court and this was held to be an error apparent on the face of the re cord. In the case of Bharat Metal Box Co. (supra) it was held that the order applying the extended period of limitation in the facts of the case was an error apparent on the face of the record. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no suppression of facts, the demand is time barred as the demand relates to the period which is beyond six months", it does not appear that the ground was seriously canvassed. From the record, it appears that the dispute was raised with respect to classification. It is relevant to mention here that no such plea appears to have been taken by the applicant in the reply to the show cause notice or argued before the Collector, Central Excise, vide the Order-in-Original. No foundational facts were stated in the memo portion of the appeal. 11. A perusal of the rectification application suggests that the applicant is really interested in re-hearing of the appeal and it wants the dispute relating to classification to be re-opened and decided afr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not constitute error on the face of record. An error can be said to be apparent on the face of record only when it is patent and can be found without any elaborate argument, without any scope for controversy, with regard to such error. If the law that is applied is not the law applicable, it will be a case of error apparent on the face of record. If the judgment is defective, on the face of it, or where an important issue on which the outcome of the proceeding would depend, has not been considered or the law declared by the Apex Court or the jurisdictional High Court has not been noticed, that too would constitute error on the face of the record. We observe no more for the purpose of this case. 13. The remedy of appeal, revision or rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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