2009 (9) TMI 786 - AT - Central Excise

Condonation of delay - delay 8 months in filing the application for ROM - Held that - this Tribunal is creature of statute, more specifically as provided under Section 129 of the CA, 1962. The powers vested in the Tribunal for the purpose of deciding the appeals filed before us are drawn from the said Section 129 of the CA, 1962. The provisions of CEA, 1944, more specifically the provisions of Section 35C(2) of the CEA has to be applied in this case - There is no explanation for the delay in filing the application for rectification of mistake on 10-12-2008, when revenue themselves have sanctioned the refund claims to the assessee on 11-2-2008 in Appeal No. E/161/2007. It is true that the period of limitation specified in terms of Sub-section (2) of Section 129(B) of the CA is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefore. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with. The proviso 35C(2) do not empower us for condoning the delay in filing the application for rectification of mistake filed belatedly. Delay not condoned - COD application dismissed - decided against appellant.

Summary

The Appellate Tribunal CESTAT Bangalore considered a miscellaneous application filed by the Revenue for condonation of delay in filing an application for rectification of mistake in Appeal No. E/161/2007. The Revenue sought to rectify a factual error that led to an unintended benefit for the respondent. The Tribunal found that the Revenue had already sanctioned refund claims to the assessee in the appeal in question, despite claiming a mistake in the order. The Tribunal noted that the Revenue failed to explain the delay in filing the rectification application and dismissed the application for condonation of delay. The Tribunal emphasized that the provisions of Section 35C(2) of the Central Excise Act do not allow for the condonation of delay in filing rectification applications. The Tribunal also referenced a Supreme Court decision to support its decision. Consequently, the Tribunal dismissed the application for rectification of mistake and other miscellaneous applications filed by the Revenue. The judgement was pronounced on 8-9-2009.