TMI Blog2004 (9) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... per Final Order No. 644/91 ibid, wherein the earlier decision of this Bench in the case of Andhra Pradesh Paper Mills Ltd. v. CCE [1990 (50) E.L.T. 252] was followed and accordingly it was held that the Felts and Wires of the appellants were, essentially, parts of their paper-making machinery and the items could only be considered to have been used in relation to the machinery and could not be held to have been used in, or in relation to, the manufacture of paper. The appellants' claim for the benefit of input duty credit in respect of Felts and Wires was thus rejected. The Final Order noted, inter alia, that the appellants' Counsel had fairly conceded that their case was covered against them by the Tribunal's decision rendered in the case of Andhra Pradesh Paper Mills Ltd. (supra). 3.In the present application, it is stated that, in the case of Straw Products Ltd. v. CCE C [1992 (59) E.L.T. 572 (T)], Felt and Wire netting of stainless steel and phosphor bronze used by M/s. Straw Products Ltd. (manufacturers of paper) were held to be eligible inputs for Modvat credit under Rule 57A. It was held, in that case, that the said items were used in, or in relation to, the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts (supra) was not there when this Bench passed the Final Order ibid. It was not a part of the record of the appeal. Hence no "mistake apparent from the record" could be pointed out with reference to the subsequent decision in Straw Products (supra), in the Final Order. It was, further, argued that the case law on income-tax/Sales tax law provisions, cited by ld. Counsel, could not be applied to Central Excise law provisions. The present application, according to ld. SDR, was an appeal in disguise, which was not permissible under Section 35C(2) of the Central Excise Act. The only remedy available to the appellants, if aggrieved by the above Final Order, was an appeal to the higher appellate forum and not an application for rectification of mistake. Ld. DR further pointed out that, in this case, the appellants' Counsel had, at the hearing stage, conceded that their case was covered against them by the Tribunal's decision in Andhra Pradesh Paper Mills (supra). The Final Order passed on the basis of such concession was not open for rectification of mistake at the instance of the appellants, SDR argued. 6.In his rejoinder, ld. Counsel argued that this application was in no way aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered view that there was no mistake, let alone mistake apparent from the record, in not having discussed or considered the grounds of the appeal, in the Final Order, inasmuch as the appellants' Counsel, after stating such grounds conceded that "their case" was covered against them by the Tribunal's decision in the case of Andhra Pradesh Paper Mills (supra). What was conceded was that the appellants' "case" was covered by the Tribunal's earlier decision, which meant that the entire dispute in the appeal stood covered by such decision. It was argued by Shri Sridharan relying on the Federal Court's judgment, that the Counsel's "mistake" of having conceded the Revenue's case was not a circumstance that affected the Tribunal's jurisdiction to rectify its order. In this context, we may state that there was no mistake on the part of the appellants' Counsel when he conceded the Revenue's case in the light of the Tribunal's decision in Andhra Pradesh Paper Mills (supra) as no contra decision of the Tribunal or any High Court or the Supreme Court was available to him at that stage. Moreover, the Federal Court was dealing with a Court's power of review under the Code of Civil Procedure, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from what was conceded by the Government's Counsel in R. K. Rai's case. The concession in R.K. Rai's case had stopped short of touching the validity of Rule 10A ibid which was the core point of dispute before the Apex Court. Therefore, R.K. Rai's case does not seem to support the present application, which, in own view, cannot be maintained vis-à-vis the concession made by the Counsel at the hearing of the appeal. 8.Much arguments have been made and case law cited on the question whether a Final Order of the Tribunal can be held to be containing a "mistake apparent from the record" on account of the fact that there is a subsequent contra decision by the Tribunal or any High Court or the Supreme Court on the same issue as the one decided in such Final Order of the Tribunal. We find that the majority view taken by the Tribunal's Larger Bench in Gujarat State Fertilisers and Chemicals (supra) is mainly based on the Supreme Court's judgment in the case of Dokka Samuel v. Dr. Jacob Lazarus Chelly [(1997) 4 SCC 478], wherein it was held that an omission to cite an authority of law was not a ground for reviewing a judgment on the premise that there was an "error apparent on the face ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority of law at the final hearing stage of the appeal. They have requested for rectification of "error" on the ground that, in a subsequent decision, the Tribunal has taken a view contra to the one taken earlier in their case. We are unable to accept this plea of the appellants as it is repugnant to the view taken by the Larger Bench in Gujarat State Fertilizers Chemicals (supra) by relying on the ruling of the Supreme Court in Dokka Samuel (supra). We have also noticed that the decision of the Larger Bench in the said case has been followed by another Larger Bench of the Tribunal in the case of Mira Silk Mills v. CCE. Mumbai [2003 (153) E.L.T. 686]. The Larger Bench, in GSFC's case, has also relied on the Madras High Court's judgment in the case of Shree Palaniappa Transports v. Commissioner of Income Tax [1999 (238) ITR 492 (Mad.)] wherein it was held that any decision of the Income-tax Appellate Tribunal on a debatable issue, at a time when there was no decision of the jurisdictional High Court available on such issue, could not be deemed to have been erroneously made merely because, subsequent to the decision of the Tribunal, the jurisdictional High Court rendered a con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras High Court did not notice the Apex Court's ruling in Dokka Samuel. Therefore, in our view, the present application cannot claim support from the decisions cited by ld. Counsel. 10.Without prejudice to the above view of ours, the issue can be examined in a different angle also. There is essentially no difference between "error or mistake apparent on the face of the record" (ground for review) and "error or mistake apparent from the record" (ground for rectification). But this Tribunal has no power of review and has only the power to rectify its order, the latter power being narrower in scope. This would mean that the Tribunal cannot review its order even in the guise of rectifying it. If this be so, the meaning and scope of "error/mistake" for the purpose of rectification cannot be same as that for the purpose of review. The expression has a narrower meaning for the purpose of rectification, as the power to rectify, per se, is of narrower scope than the power to review. What is required by the present applicants is nothing short of reversing the decision taken in the Final Order in view of a subsequent decision of the Tribunal, which was not a part of the record of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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