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TMI Blog2019 (12) TMI 1675X X X X Extracts X X X X X X X X Extracts X X X X ..... jected on the sole ground that the appellant had admitted the transaction with M/s Hind Metal Industries & Others based on which the case of clandestine removal was booked against the appellant. The appeal of M/s Hind Metal has been allowed by the Tribunal vide Final Order No. 51339/2018 dated 12.4.2018, wherein the whole duty demand and penalty were set aside stating that the allegation of clandestine manufacture and clearance thereof have not been established satisfactorily; (iii) That the Tribunal failed to consider the argument raised by the appellant, regarding the admission of statement of Shri Alok Aggarwal in the impugned final order without appreciating the settled law as laid down by Hon‟ble Punjab & Haryana High Court in the case Jindal Drugs Pvt. Ltd. Vs. Union of India - 2016 (340) ELT 67 (P&H) and decision of Hon‟ble Tribunal in case of CCE, Delhi-I Vs. Kuber Tobacco India Ltd. - 2016 (338) ELT 113 (Tri.-Del.) and many other judgements such as Flevel International Vs. CCE - 2016 (332) ELT 416 (Del.) and Arya Fibres Pvt. Ltd. Vs. CCE, Ahmedabad-II - 2014 (311) ELT 529 (Tri.-Ahmd.); (iv) That in the impugned order the statement of Shri Alok Aggarwal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of record and Tribunal have jurisdiction to correct such mistake in exercise of its power under Section 35C(2) of Central Excise Act. Accordingly, it was prayed that this Tribunal may kindly recall the order and rectify the mistake by allowing this ROM application with consequential relief to the appellant. 2. Learned Advocate on behalf of the appellant submits that the order was passed on 20.6.2018, which was received by the appellant on 10.7.2018 and the ROM has been filed on 4.1.2019. The ROM has been filed on 4.1.2019 which is within six months of the receipt of this Tribunal‟s order placing reliance on the following case laws : (a) Liladhar T. Khustani Vs. Commissioner of Customs - 2017 (351) ELT 36 (Guj.); (b) Allied Fibres Ltd. Vs. CC (Import) - 2017 (357) ELT 123 (Bom.); (c) Vadilal Industries Ltd. Vs. Union of India - 2006 (197) ELT 160 (Guj.); (d) Garlon Polyfab Industries Vs. CCE, Kanpur - 2015 (323) ELT 340 (All.); (e) Balaji Rollings Pvt. Ltd. Vs. CCE, Goa - 2009 (246) ELT 269 (Tri,.-Mum.). 2.1 He, therefore, prayed that this Tribunal may recall its own order and considered the appeal afresh placing reliance on the following decisions: (i) Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the order. However, on the other hand, the learned Advocate has placed reliance on the decisions of Hon‟ble Gujarat High Court in case of Liladhar T. Khustani (supra) where at paragraph 2.1 to 3 it is held as under: 2.1 While passing the impugned order the learned CESTAT has relied upon the decision of the Hon‟ble Supreme Court in the case of Commissioner of Customs, Central Excise v. M/s. Hongo India (P) Ltd. & Anr. reported in (2009) 236 E.L.T. 417 (S.C.). However, on considering the facts/questions before the Hon‟ble Supreme Court in the said decision, it appears that the controversy was whether despite the specific provisions not to condone the delay beyond the period of limitation provided under the statute, whether High Court was justified to condone the delay in filing the rectification application or not, and therefore, as such, the learned CESTAT has wrongly relied upon the decision of the Hon‟ble Supreme Court in the case of M/s. Hongo India (P) Ltd. & Anr. (supra). As such, the question involved in the present Appeal is now not res integra in view of the decision of the Division Bench of this Court in the case of Vadilal Industries Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a party to the appeal is in a position to go through and study the order it would not be possible, nor can it be envisaged, that a party can claim to be aggrieved by the mistake apparent from the record. Hence, even on this count the period of limitation has to be read and understood so as to mean from the date of the receipt of the order. 16. Therefore, the action of the Technical Officer to return the papers of ROM Application without even placing the same before the Bench concerned is not only bad in law, but is not supported by the provisions of the Act." 2.3 Some what similar question came to be considered by the learned Single Judge in the case of Ritaben Kamleshbhai Mehta, Through P.O.A. Devang Kamleshbhai Mehta & Ors. v. State of Gujarat & Ors. reported in 2015 (2) GLR 1664. Before the learned Single Judge the question was whether the period of limitation to file the Appeal against the order of Deputy Collector, which was 90 days is required to be computed from the date on which the order of first adjudicatory authority communicated to the affected person or from the date of the order and considering the decision of the Hon‟ble Supreme Court in the case of D. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the Tribunal for considerable time of conclusion of hearing, therefore, appellant requested Registrar of the Tribunal for handing over the order if any to bearer of the request letter. On 9-1-2015, the Registrar of the CESTAT handed over the order passed by the Tribunal to the representative of the appellant. On 6-7-2015 the appellant filed an application for rectification of mistakes as provided under Section 129B of the Act. On 15-7-2015, the Misc. Application was dismissed on the ground that the same was filed beyond the time limit prescribed under the law. 6.Section 129B(2) reads as under : "129B. Orders of Appellate Tribunal. - ......... (1) The Appellate Tribunal may, at any time within six months from (2) 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 Commissioner of Customs or Commissioner of Customs or the other party to the appeal : Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two parts. The first part grants "14 discretion to the Tribunal to take up any order made under sub-section (1) of Section 35C of the Act for rectifying any mistake apparent from record or amending any order within six months from the date of the order. The second part of the section requires that the Tribunal shall make such amendments if the mistake is brought to its notice by either party to the appeal before it. The party to the appeal can bring the fact of apparent mistake on record only after going through the order made by the Tribunal. Therefore, to read that the period of limitation has to be computed at any time within six months from the date of the order does not fit in either with legislative intent or the language employed by the provision. There is another angle from which the matter can be approached. It 15 is only the party to the appeal who finds that the order contains a mistake apparent from the record and is aggrieved by such mistake, would be in a position to move an application seeking rectification of the order. Therefore also, unless and until a party to the appeal is in a position to go through and study the order it would not be possible, nor can it be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant is entitled to exclude the time taken by him for obtaining the copy of the order and condoned the delay in filing such appeal. The provisions of Limitation Act read with the provisions of the Act in question, therefore, is required to be read together as both are relating to procedural aspects of filing such an appeal/application. As there is no specific provision to deal with the limitation aspect from the receipt of the order, we are of the view that a case is made out by the appellant even to condone the delay, if any. The period of limitation may be different under two different circumstances. Therefore, the application so filed under the same provision from the receipt of order is within limitation. Such application cannot be liable to be dismissed as sought to be contended by the Department. 12.Therefore, taking overall view of the matter, we are inclined to interfere with the order so passed by holding that the second part of the Section read to mean that the appeal/application may be filed within six months from the receipt of the order". Further, reliance was placed on the decision of Vadilal Industries Ltd. (supra), wherein it is held that relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative of the petitioner obtained a photo copy of the order dated 16-10-2003 made by the Tribunal, from the office of respondent No. 3. Armed with the said copy, the petitioner moved a Rectification of Mistake Application on 5-8-2005. On 23-8-2005, the Technical Officer of CESTAT returned the application by stating "The R.O.M in the above mentioned matter has been filed by you after expiry of limitation period of six months. Hence, the R.O.M is time barred and papers filed by you are returned herewith along with the Demand Draft." 7. Mr. Paresh Dave submitted that approach of CESTAT/Technical Officer of CESTAT was not borne out from the facts on record. That the petitioner had not received the certified copy from the Tribunal, had made an application for the same being furnished and on the basis of the xerox copy received from the office of respondent No. 3 moved ROM application. Therefore, according to Mr. Dave, the period of six months could be computed only from 18-7-2005 at the earliest. And if this date was taken as the starting point of period of limitation, the ROM application was within the period of limitation. He also submitted that provisions of Section 35C(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with the requirement of law to effect service nothing further was required to be done by the said authority, and therefore, the ROM Application had been rightly held to be barred by limitation, and hence there was no scope for any intervention. 12.Under Section 37C of the Act a provision is made prescribing the mode of service of any decision or order, any summons or notice issued under the Act or the rules made thereunder. Under clause (a) of Section 37C of the Act it is laid down that the decision, order etc. should be sent by Registered Post with acknowledgement due; in the case of failure to effect service in the mode prescribed under clause (a), clause (b) stipulates that the same shall be done by affixing a copy thereof to some conspicuous part of the factory etc; and lastly, in the event of failure to effect service by the mode prescribed under clause (b) , clause (c) provides that the service be effected by affixing a copy thereof on the notice board of the officer or authority who or which made the order etc. Under sub-section (2) of Section 37C of the Act, a statutory presumption is provided wherein it is laid down that the service will be deemed to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in favour of the assessee and against the revenue." 11. We further take a note of the fact that the Ld. AR relied on the case of National Engg. Inds. Ltd. (supra) which has been affirmed by the Hon‟ble Apex Court but the decision in the case of Sunitadevi Singhania Hospital Trust (supra) was not available to the Tribunal, therefore, the decision of Larger Bench cannot be followed." We have also considered various decisions cited by the learned DR, but we find that the aspect of receipt of the order was never the issue before the Tribunal in those cases and the decisions of Hon‟ble Supreme Court and of High Courts were also not considered by the Tribunal. The Section 129 (B) (2) of the Customs Act, 1962 is parimateria to Section 35C(2) of Central Excise Act, 1944 and hence the decision of Sunitadevi Singhania Hospital Trust will be applicable to Central Excise Act, as well In the circumstances, we are of the opinion that this ROM is maintainable being filed within the period of limitation. The preliminary objection raised by the Departmental Representative is, therefore, overruled. 6. Further, coming to the merits of this application, we find that all the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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