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TMI Blog2024 (6) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... e reference made to the Larger Bench of the Tribunal was answered by an interim order dated 06.06.2023. The department has filed applications for Rectification of Mistakes in the said order. 2. In the application filed by the department in Excise Appeal No. 173 of 2011 (Commissioner of Central Excise vs. JCB India Limited), the mistakes that have been pointed out are: (i) The first mistake that has been pointed out is regarding the second part of the first issue in the referring order dated 01.08.2016. It has been stated that a statute cannot always be construed with respect to the dictionary meaning and regard must also be had to the scheme, context and the legislative history of the provision. The correct guide is to understand the context and the trade meaning applying the said test. The meaning to be accorded to the parts and components cannot be restricted to those used in cars alone, but to all automobiles and in this connection reference has been made to the decision of the Supreme Court in Collector of C.E., Kanpur vs. Krishna Carbon Paper Co [1988 (37) E.L.T. 480 (S.C.)]. The mistake that has been pointed out is that there is no mention of the said judgment on the limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been pointed by the department in Excise Appeal No. 173 of 2011. 4. Shri PVR Ramanan, learned special counsel who has appeared on behalf of the department has pressed the Rectification of Mistake Applications, while Shri V.S. Nankani and Shri V. Sridharan, learned senior counsel have opposed the applications. 5. In the reply submitted to the Rectification of Mistake Applications, the following contentions have been raised: (i) The Rectification of Mistake Applications are not maintainable as section 35C(2) of the Central Excise Act 1944 [the Central Excise Act] allows the Appellate Tribunal to rectify any mistake apparent from the record by amending any order passed by it under section 35C(1) of the Central Excise Act. The interim order passed by the Larger Bench on 06.06.2023 is not an order contemplated under section 35C(1) of the Central Excise Act. (ii) The Larger Bench passed the order after taking into consideration all the submissions and there is no mistake apparent on the face of record. In the garb of rectifying the alleged mistakes, the Revenue is practically seeking a review of the order passed by the Larger Bench. (iii) Regarding the first mistake pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding out the meaning of the term 'automobile', which has not been defined in the statute. Thus, the said Circulars provide answer as well as direction to the first question referred to the Larger Bench. (vii) Regarding the fifth mistake, it has been contended that BIS Standard relate to 'automotive vehicles' and the same cannot be equated with the term 'automobiles'. (viii) Regarding the sixth mistake, it has been contended that the Revenue has failed to establish that the parts referred to are common for automotive vehicles in the show cause notice and that there is absolutely no basis to allege that the aforesaid parts are common to all automotive vehicles. Thus, in the absence of such an allegation in the show cause notice, the Revenue cannot raise this issue. 6. It would be appropriate to first examine the preliminary objection raised by the learned senior counsel opposing the applications that the applications filed for rectification of mistakes in the interim order dated 06.06.2023 answering the reference made to a Larger Bench of the Tribunal by a Division Bench of the Tribunal are not maintainable. 7. Learned senior counsel opposing the applications have referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in Collector of Central Excise, Meerut and Others vs. Lal Chand Anand and Other [1986 (23) E.L.T. 530 (Tribunal)] and also upon a Larger Bench decision of Three Members of the Tribunal in Commissioner of Customs, Mumbai vs. Hico Enterprises [2006 (194) E.L.T. 157 (Tri.-LB)]. 9. Learned special counsel appearing for the department has, however, contended that the Tribunal does have power under sub-section (2) of section 35C of the Central Excise Act to rectify the mistakes occuring in the order answering the reference, and in support of this contention learned special counsel placed reliance upon a decision of the Supreme Court in Honda Siel Power Products Ltd. vs. Commr. of Income Tax, Delhi [2008 (9) S.T.R. 117 (S.C.)] and upon a Division Bench decision of the Tribunal in Shreya Life Sciences P. Ltd. vs. Commr. of CGST, Cus. & C. Ex., Dehradun [2019 (370) E.L.T. 1306 (Tri.-Del.)]. 10. The contentions advanced by the learned senior counsel opposing the applications and the learned special counsel appearing for the department on this aspect have been considered. 11. Under sub-section (1) of section 35C the Tribunal can confirm, modify or annual the decision or order appeale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. Section 35G. Statement of case to High Court. (1) The Collector of Central Excise or the other party may, within sixty days of the date upon which he is served with notice of an order under section 35C (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference on the ground that the point which was before the Larger Bench stood finally disposed, and that concerned Special Bench is bound by the said order, and to that extent the order has to be construed as a final order, although we observe that in reply to the reference application, filed under his signatures, Shri Sharma took up the position that reference application was not maintainable and liable to be rejected. Since he invited our attention to the cross-objection filed by him subsequently, availing of the provisions of sub-section (2) of Section 35-G, he was allowed to argue on this point, but we nevertheless feel that nothing turns on this as an order within the contemplation of Section 35-C is an order which finally disposes of an appeal, and not specific point; particularly when, it is nobody's case that the appeals stood disposed of by the Larger Bench Order. It is rather conceded that the appeals remained duly pending before Special Bench B, and after the point referred to Larger Bench was answered, individual appeals were to be taken up separately on facts. xxxxxxxxxxx 15. On a careful consideration of the position, and recapitulating what has been discussed abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing decisions rendered by the Tribunal earlier in two different cases, as cited supra, therefore, the matter has been referred for an answer by the Larger Bench. Accordingly, the Larger Bench, after taking into consideration all the submissions made by both sides, has passed the reference order and sent it back to the Regular Bench for disposal of the appeal. Therefore, in our considered view, the reference order made by the Larger Bench is not a final order passed in the appeal. The Regular Bench has to follow the reference order in respect of the conflicting issue and also to resolve other disputed issues in the appeal and finally dispose of the same. In other words, the reference order passed by us neither confirms, modifies nor annuls the decision or order appealed against nor does it remand the same to the authority which passed it. The Larger Bench, in its intermediate position, gave guidance to the Regular Bench by way of this reference as to which law is to be applied to the disputed issue. 7. In view of the aforesaid discussion, we are of the considered view that the present application does not fall within the ambit of sub-section (2) of Section 129B of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal to set it right. Atonement to the wronged party by the court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case." (emphasis supplied) 19. The aforesaid decision for the Supreme Court does not deal with the maintainability of an application filed for rectification of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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