1984 (12) TMI 301 - AT - Central Excise

Issues Involved:
1. Marketability and Excisability of "Wet Dextrose"
2. Application for Rectification under Section 35C(2)
3. Maintainability of Reference Application under Section 35G
4. Interpretation of "Mistake Apparent from the Record"
5. Adherence to Precedents by the Tribunal

Detailed Analysis:

1. Marketability and Excisability of "Wet Dextrose":
The primary issue was whether "Wet Dextrose" produced by the applicants was excisable and classifiable under Item 1E of the Central Excise Tariff Schedule. The Assistant Collector and the Collector (Appeals) had previously held that "Wet Dextrose" was excisable. The Tribunal, in its Order dated 2-4-1984, upheld this classification, stating that even intermediate products used for further manufacture are liable to excise duty. The Tribunal referenced the judgment of the Allahabad High Court in Union Carbide India Limited, which held that goods need not have a general market to be considered excisable.

2. Application for Rectification under Section 35C(2):
The applicants filed a Miscellaneous application under Section 35C(2) for the review of the Tribunal's Order dated 2-4-1984, which was rejected by the Tribunal on 23-8-1984. The Tribunal held that the applicants' case was based on "debatable points" and that there was no "mistake or error apparent on record" that required rectification. The Tribunal emphasized that a mistake apparent from the record must be obvious and patent, not something that requires extensive reasoning or argument.

3. Maintainability of Reference Application under Section 35G:
The present application was filed under Section 35G to refer questions of law to the High Court. The Tribunal noted that Section 35G specifically excludes orders relating to the determination of any question having a relation to the rate of duty of excise. Since the issue was whether the goods were excisable and classifiable under a particular item, it was prima facie excluded from the scope of Section 35G. The Tribunal referenced its decision in Union Carbide India Limited, which analyzed the scheme of the Act and concluded that matters involving determination of rates of duty or value are reserved for Special Benches and are directly appealable to the Supreme Court.

4. Interpretation of "Mistake Apparent from the Record":
The applicants contended that the Tribunal committed a "mistake apparent on the face of the record" by not following the Supreme Court judgments in D.C.M. and South Bihar cases regarding the issue of marketability. The Tribunal, however, held that the question of marketability was a debatable point and not an obvious error. The Tribunal reiterated that a debatable point of law cannot be considered a mistake apparent from the record.

5. Adherence to Precedents by the Tribunal:
The applicants argued that the Tribunal erred by not following its own decision in New Shorrock Mills, which considered independent marketability necessary even at the intermediate stage. The Tribunal responded that it is not bound by its previous decisions and that the issue of marketability had been settled by the Supreme Court, making it a debatable point rather than an apparent error.

Conclusion:
The Tribunal concluded that the present reference application was not maintainable under Section 35G due to the exclusion clause relating to the rate of duty of excise. Even if the application were maintainable, no question of law arose from the Tribunal's Order dated 23-8-1984 that required reference to the High Court. The proper remedy for the applicants was to file an appeal to the Supreme Court under Section 35L against the order dated 2-4-1984. The application was thus rejected.

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