2008 (10) TMI 419 - AT - Central Excise

Summary

Issues:
Rectification of mistake in Final Order dated 4-3-2008.

Analysis:
The Revenue filed an application seeking rectification of mistake in Final Order No. 994-995/2008-SM (BR) dated 4-3-2008. The Revenue argued that a previous Final Order dated 20-7-2007, in a case involving the same respondent, had allowed the appeal filed by the Revenue on an identical issue. The Revenue contended that the Final Order dated 4-3-2008 took a contradictory view. The Revenue claimed that passing two self-contradictory orders on the same issue by the Tribunal was not permissible. The Tribunal, in the Final Order dated 4-3-2008, was accused of making a mistake that needed rectification. The Revenue emphasized that the subsequent Final Order was a nullity in the eyes of the law and requested its recall and modification.

Upon considering the arguments from both sides and examining the records, the Judge found that the main contention of the Revenue was that the Final Order dated 4-3-2008 was a nullity in the eyes of the law. It was noted that the Final Order dated 20-7-2007, which favored the Revenue, was an ex parte order. The Judge observed that this decision was not brought to the Tribunal's attention while passing the Final Order dated 4-3-2008. Consequently, the Judge concluded that this omission could not be considered a mistake apparent on the face of the record. The Judge further clarified that the contention of the Revenue regarding the Final Order dated 4-3-2008 being a nullity did not fall within the scope of Section 35C(2) of the Central Excise Act, 1944. Therefore, the application for rectification of mistake was rejected. The decision was dictated and pronounced in open court on 21-10-2008.