2010 (10) TMI 1009 - AT - Central Excise

Rectification of mistake - sub-section (1) of Section 35C - Held that - the mistake apparent from records can be rectified only in respect of an order under Section 35C(1) which is the final order disposing of the appeal - the order which is sought to be rectified is not the order u/s 35C(1) but the stay order passed u/s 35F. In view of this the provisions of Section 35C(2) cannot be invoked for rectification of stay order passed u/s 35F - ROM application dismissed.

Summary

Issues: Application under Section 35C(2) for rectification of stay order.

The judgment deals with applications under Section 35C(2) of the Central Excise Act, 1944 for rectification of a mistake apparent from the record in relation to a stay order dated 18th January, 2010, which dismissed the appellant's stay applications. The tribunal decided to proceed with the applications on merit due to the absence of the appellant despite being served notice. The Departmental Representative argued that the rectification order must be passed within six months from the date of the original order, citing a judgment of the Hon'ble Karnataka High Court. The tribunal noted that Section 35C(2) allows for rectification of mistakes in orders passed under Section 35C(1), which are final orders disposing of the appeal. The tribunal clarified that the mistake apparent from records can only be rectified in respect of a final order under Section 35C(1).

The tribunal emphasized that the order in question was a stay order passed under Section 35F, not an order under Section 35C(1). Therefore, the provisions of Section 35C(2) could not be applied for rectifying a stay order under Section 35F. Consequently, the tribunal dismissed the miscellaneous applications seeking rectification of the stay order, as they were not covered under the scope of Section 35C(2). The judgment was dictated and pronounced in open court by the Member (T) of the Appellate Tribunal CESTAT NEW DELHI.