TMI Blog2005 (12) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Thus, the averment made on oath by the petitioner that a copy of the order was not served on the petitioner, remains unrebutted. The Technical Officer of CESTAT vide communication dated 23-8-2005 has returned the papers of ROM Application on the ground that the same was barred by limitation. There is another angle from which the matter can be approached. It 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 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. 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. Thus, the ROM Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g April, 1994 to June, 1997 the partnership firm availed of concessional rate of duty under Notification No. 20/94, dated 1-3-1994. The respondent-authority issued show cause notice proposing to deny the concessional rate of duty and ultimately passed an order on 13-1-98 raising a demand of Rs. 14,86,656/- with penalty of Rs. 50,000/-. The appeal filed by the petitioners before Commissioner (Appeals) failed and hence, the petitioners approached the CESTAT by way of Second Appeal. 4.It appears that on 16-10-2003 when the Second Appeal was fixed before the Bench of CESTAT at New Delhi, the advocate of the petitioners applied for adjournment as he was preoccupied with some other work. The application for adjournment was turned down and the appeal came to be decided ex-parte. It is the say of the petitioner that the petitioner was not aware about the order made by the Tribunal on merits, dismissing the appeal partly. It is further averred in the petition that the order made by CESTAT was not served upon the petitioner or its advocate. 5.On 13-7-2005, the petitioner received communication dated 8-7-2005 from respondent No. 3 . Hence, on 14-7-2005, the representative of the petitioner vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Tribunal. That, though the petitioner-company shifted manufacturing unit after taking over the partnership firm, from Bayad to Ahmedabad, the petitioner had failed to intimate the change of address on the record of the Tribunal. Therefore, the Registry of the Tribunal had effected service at the address mentioned in the memorandum of appeal as required by CESTAT rules. He therefore, submitted that the petition was required to be rejected on this ground alone. 9.When the petition came up for hearing before this Court on 3-10-2005, after hearing the advocate for the petitioner, the Court issued notice with a direction to respondent No. 2 to place on record the details as to when and how the impugned order of Tribunal dated 16-10-2003 was served on the petitioner. The said order was followed by order dated 18-11-2005. 10.In response to the aforesaid order, Deputy Registrar, CESTAT, New Delhi, has forwarded communication dated 19-10-2005 whereunder it is stated that the final order made by CESTAT was dispatched through Registered Post A.D. to the address of the petitioner as indicated in column No. 6 of prescribed form of appeal on 9-12-2003, but the same was received back u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 2 that it had sought to effect service and had effected service in any of the modes prescribed under clauses (b) and (c) of sub Section (1) of Section 37C of the Act. In the circumstances, the averment made on oath by the petitioner that a copy of the order was not served on the petitioner, remains unrebutted. 14.There is one more aspect of the matter. The Technical Officer of CESTAT vide communication dated 23-8-2005 has returned the papers of ROM Application on the ground that the same was barred by limitation. Section 35C(2) of the Act provides for the period of limitation coupled with the powers of the Tribunal to rectify any mistake apparent from the record or amend any order passed under Section 35C(1) of the Act. At the first blush it appears that the period of limitation has to be computed at any time within six months from the date of the order. However, when one reads the latter portion of the provision, it becomes abundantly clear that the period of six months from the date of order is in relation to the power of rectification that the Tribunal may exercise suo motu. The Section is divided into two parts. The first part grants discretion to the Tribunal to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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