2009 (5) TMI 605 - AT - Central Excise

Application seeking relief in the nature of recall of order - appeals on the ground that, certain contentions, which were argued by the learned advocate for the applicant in relation to the matter in issue, were not considered and no findings thereon were given by the Tribunal while passing the said order and, therefore, there is mistake apparent from the record which would justify exercise of powers under Section 35C(2) of the Central Excise Act, 1944 - Held that - observation by the Hon ble High Court of Allahabad is, prima facie, observation in order to enable the party to file an application. That itself does not mean that the applicant has made out a case for grant of relief of rectification. The relief of rectification can only be granted only after the applicant makes out a case in that regard. Having failed to make out a case for rectification, the application is liable to be dismissed and is hereby accordingly dismissed.

Issues Involved:
1. Recall of order dated 23rd May, 2008.
2. Alleged non-consideration of contentions by the Tribunal.
3. Application under Section 35C(2) of the Central Excise Act, 1944.
4. Compliance with principles of natural justice.
5. Impact of High Court directions on Tribunal's decision.
6. Limitation period for filing rectification application.
7. Tribunal's power to rectify mistakes versus power of review.

Detailed Analysis:

1. Recall of Order Dated 23rd May, 2008:
The appellants sought the recall of the order dated 23rd May, 2008, arguing that certain contentions were not considered by the Tribunal, resulting in a mistake apparent from the record. The Tribunal examined the application and the records, including the memorandum of appeal, to determine the validity of this claim.

2. Alleged Non-Consideration of Contentions by the Tribunal:
The appellants contended that the Tribunal failed to consider various points argued during the hearing. They relied on decisions from other cases to support their argument that the Tribunal must consider all points canvassed by the parties. The Tribunal, however, found that the contentions were considered in totality, even if not discussed independently, and thus, there was no apparent mistake on the record.

3. Application under Section 35C(2) of the Central Excise Act, 1944:
Section 35C(2) allows the Tribunal to rectify any mistake apparent from the record within six months from the date of the order. The Tribunal emphasized that it is a creation of the statute and governed by its provisions, which do not include the power to review or revise its orders, but only to rectify mistakes apparent from the record.

4. Compliance with Principles of Natural Justice:
The appellants argued that the failure to consider all points violated the principles of natural justice. The Tribunal examined whether the contentions were indeed argued and found that the records did not support the claim that all points listed in the memorandum of appeal were argued. The Tribunal noted the absence of affidavits from the advocate or any immediate steps taken to correct the record, as required by settled law.

5. Impact of High Court Directions on Tribunal's Decision:
The High Court of Allahabad had directed the appellants to seek rectification from the Tribunal. The Tribunal clarified that the High Court's observation did not mandate the Tribunal to entertain the application irrespective of statutory restrictions. The High Court's direction was to file an application for rectification, not to entertain it beyond the statutory period.

6. Limitation Period for Filing Rectification Application:
The application for rectification was filed beyond the six-month period specified under Section 35C(2). The Tribunal noted that the High Court's order did not condone the delay, and no application for condonation of delay was filed by the appellants. Therefore, the Tribunal could not entertain the application beyond the prescribed period.

7. Tribunal's Power to Rectify Mistakes versus Power of Review:
The Tribunal reiterated that it has the power to rectify mistakes apparent from the record but not to review its decisions. The Tribunal referred to the Supreme Court's ruling in Sunitadevi Singhania Hospital Trust's case, which emphasized that rectification is permissible for mistakes apparent from the record, provided the application is filed within a reasonable time and the contentions are prima facie correct. However, the Tribunal found no material to support the appellants' claim that the points were argued and not considered.

Conclusion:
The Tribunal concluded that the appellants failed to make out a case for rectification. The application was dismissed as it was filed beyond the statutory period, and there was no evidence to support the claim that the contentions were argued and not considered. The Tribunal emphasized the distinction between rectification and review, adhering to the statutory limitations and principles of natural justice.

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