2010 (12) TMI 1022 - AT - Central Excise

Rectification of mistake - appellant was not entitled to the benefit under Notification No. 43/2001, breach of law could not grant immunity to the appellant for which adjudication order was confirmed and first appellate order was upheld. Submission of the learned Council would have been appreciated if penalty issue had been raised by substantial argument at the time of hearing appeal. But appellant failed to appear and make submissions - Held that - patent mistake shall only be rectified without review of the order in entirety. Further when appeal is dismissed on merit there remains no scope to grant immunity from penalty. Merits of the case not being possible to be reviewed by a Rectification Petition, there is no scope to substitute the order by a fresh order. Consequently, present application for ROM is dismissed.

Summary

Issues:
- Rectification of mistake in a duty order without penalty consideration

Analysis:
The judgment revolves around the issue of rectification of a duty order without considering the penalty aspect. The appellant argued that since the duty order did not address the penalty issue, there was room to rectify the mistake and intervene in the matter again. The Tribunal, however, held that the scope of rectification is limited to mistakes apparent from the record and does not extend to a review of the entire order. It emphasized that the Tribunal, not being a court, does not have the power of review, and rectification is only for patent mistakes without delving into the merits of the case. The Tribunal concluded that when an appeal is dismissed on merit, there is no scope to grant immunity from penalty, and a rectification petition cannot substitute the original order with a fresh one. Therefore, the application for rectification of mistake was dismissed.

The judgment highlights the importance of raising substantial arguments regarding penalty during the appeal hearing. It noted that the appellant failed to appear and make submissions on the penalty issue, which limited the scope for rectification. The Tribunal emphasized that rectification is not equivalent to a review and cannot be used to reexamine the merits of the case. It clarified that the principles of rectification do not allow for a thorough scrutiny of the order or a complete review, as the focus is on correcting patent mistakes in the record. The judgment underscores that rectification is a limited process aimed at addressing clear errors without revisiting the entire order or granting immunity from penalties.

In summary, the judgment elucidates the constraints of rectification in the context of a duty order where the penalty issue was not explicitly addressed. It underscores the need for parties to raise relevant arguments during the appeal hearing and clarifies that rectification is not a mechanism for a comprehensive review or a substitute for a fresh order. The Tribunal's decision to dismiss the application for rectification underscores the limited scope and purpose of rectification proceedings in correcting only patent mistakes without delving into the substantive aspects of the case.