TMI Blog2005 (4) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the decision of the Apex Court at a subsequent stage only because the decision was published later in point of time. The Tribunal could not have overlooked the settled legal position and was bound to carry out the rectification considering the ratio of the decision of the jurisdictional High Court as well as the Apex Court. The second reason advanced by the Tribunal is no reason at all. The Tribunal should not lose sight of the fact that matter cannot be decided on the basis of personalities appearing before it. If the Tribunal had omitted to take into consideration the issues/grounds raised before it, it was of no consequence as to whether the original appeal was conducted by one representative and the petitioner was represented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 and Miscellaneous order dated 30th September, 2004. Heard Mr. Paresh M. Dave, learned Advocate for the both petitioner and Mr. Jitendra Malkan appearing on behalf of the respondents. In light of the view that the Court proposes to take up the matter, the matter is taken up for final hearing and disposal today. Rule. Mr. Malkan waives service of Rule. 2.The petitioner, a Limited Company, is carrying on business of manufacture of medicines. The dispute between the parties relates to levy of duty on physicians' samples of patent or proprietary medicines manufactured by the petitioner. It is not necessary for the purpose of the present petition to enter into any discussion on merits of the said aspect of the matter. 3.It appears that pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding and passing fresh order; (ii) Since the representative who appeared in rectification proceedings before the Tribunal had not participated in earlier proceedings the submission that the Tribunal had not considered all issues raised before it could not be considered. 6.The legal position as to the effect of decision of Apex Court or a decision of the jurisdictional High Court is well settled and needs no elaboration. In the case of Suhrid Geigy Ltd. v. Commissioner of Surtax - (1999) 237 ITR 834, this Court has laid down as under : Section 13 of the Companies (Profits) Surtex Act, 1964 provides for rectification of mistake apparent from the record. A point which is debatable cannot be termed a mistake. But when the point is covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal should not lose sight of the fact that matter cannot be decided on the basis of personalities appearing before it. If the Tribunal had omitted to take into consideration the issues/grounds raised before it, it was of no consequence as to whether the original appeal was conducted by one representative and the petitioner was represented by another person in rectification proceedings. The reason assigned by the Tribunal can only be a ground for rejecting an application in case any fact or averment which is relatable to personal knowledge of the representative is averred in the rectification proceedings. The present is not such a case. The petitioner, through its representative, had merely invited attention of the Tribunal to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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