2005 (9) TMI 489 - AT - Central Excise

Summary

Issues:
1. Rectification of apparent mistake in the final order regarding classification of goods.
2. Dispute over whether the Order-in-Appeal was appealed against by the Department.
3. Interpretation of Section 35C(2) of the Central Excise Act for rectification.

Analysis:
1. The Appellate Tribunal noted a mistake in their Final Order where they followed the lower appellate authority's classification of goods (paper tubes) under Heading No. 48.22 of the CETA Schedule. The Order-in-Appeal No. 148/2003 had not been appealed against by the Department, making it final. The Tribunal based their decision on this fact, leading to the classification in the final order.

2. The Department claimed that they had indeed filed an appeal with the Tribunal against Order-in-Appeal No. 148/2003, contradicting the Tribunal's understanding. However, the Department did not challenge the Tribunal's observation that the Order-in-Appeal had not been appealed against, which formed the basis of the final order's classification decision.

3. The Tribunal emphasized that for rectification under Section 35C(2) of the Central Excise Act, the mistake must be apparent from "the record" at the time of passing the final order. Since the information about the appeal against Order-in-Appeal No. 148/2003 was not part of the record initially and was presented later by the Revenue, the Tribunal found no merit in the Department's application for rectification.

Therefore, the Tribunal dismissed the Revenue's application for rectification, highlighting the importance of the information being part of the record at the time of the final order for invoking Section 35C(2) of the Central Excise Act.