2011 (7) TMI 510 - AT - Service Tax

Rectification of mistake - whther Mistake capable of being rectified is not confined to clerical or arithmetical mistake and it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof? - Held that - As observed by Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa 1965 (12) TMI 108 - SUPREME COURT OF INDIA an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law - If a decision is based solely on single consideration or only on one aspect of law, then possibly it could be said that there is a mistake apparent from the record - However if a decision is based on several considerations and different propositions of law, then merely because in the process of arriving at the final decision, reliance was placed on some Judgments or proposition it can never be said that in the decision there is a mistake apparent from the record. This is because the final decision could also have been based on the other relevant aspect of law and fact which were considered to be relevant and which could be used - When the Larger Bench decision goes back to Division Bench for consideration of appeal for decision, the material facts, evidence, surrounding circumstance, law applicable shall govern the decision of Division Bench instead of the Division Bench merely guided by opinion of Larger Bench.

Issues Involved:
1. Dismissal of MA (ROM) No. 29/2010 for non-prosecution.
2. Rectification of mistake in the Larger Bench Order dated 06.05.2010.
3. Jurisdiction and authority of the Larger Bench.
4. Applicability of the 46th Constitutional Amendment.
5. Misapplication of judicial precedents.
6. Review versus rectification of mistakes.
7. Legal principles governing rectification of mistakes.

Issue-wise Detailed Analysis:

1. Dismissal of MA (ROM) No. 29/2010 for Non-Prosecution:
Summary: The Miscellaneous Application (ROM) No. 29/2010 listed along with this bunch was dismissed separately for non-prosecution.

2. Rectification of Mistake in the Larger Bench Order Dated 06.05.2010:
Summary: The interveners, M/s Alstom Project India Ltd. and M/s SEPCO Electric Power Construction Corporation, filed Miscellaneous Applications (MA 487/2010 and 470/2010) for rectification of mistakes in the Larger Bench Order dated 06.05.2010. They contended that there were errors in noting submissions, non-consideration of vital submissions, and binding precedents contrary to the Larger Bench's conclusion. They argued that the Larger Bench's decision in Joyti Ltd. CCE, Vadodara was not properly considered, and the decision should have been referred to a five-member bench.

3. Jurisdiction and Authority of the Larger Bench:
Summary: The Tribunal emphasized that the Larger Bench operates in an advisory and consultative capacity, without independent jurisdiction to decide appeals in entirety. The President of the Tribunal has the discretion to refer matters to a Larger Bench to resolve conflicts in decisions of different benches. The Larger Bench does not have the power to record or re-appraise evidence but acts within the ambit of facts settled by the Division Bench.

4. Applicability of the 46th Constitutional Amendment:
Summary: The Hon'ble High Court of Delhi, in the writ petition by M/s Larsen & Toubro Ltd., held that it could not clarify the 46th Constitutional Amendment unless an issue directly arises for interpretation. The Court also emphasized that interveners affected by an order passed by the Division Bench of the Tribunal should seek recourse to appeal before a superior forum as provided in the statute.

5. Misapplication of Judicial Precedents:
Summary: The interveners argued that the Larger Bench erroneously cited and misapplied judicial precedents, including the decision in P. C. Puri V. CIT, Delhi -2. They contended that paragraphs from the judgment in Bharat Sanchar Nigam Limited V. UOI were selectively quoted, leading to erroneous conclusions. The Tribunal clarified that the Larger Bench's decision was based on settled facts and law, and any perceived errors required a detailed examination, which is beyond the scope of rectification.

6. Review Versus Rectification of Mistakes:
Summary: The Tribunal distinguished between rectification and review, stating that rectification is limited to apparent mistakes that are patent and do not require elaborate arguments. The applications filed by the interveners were deemed to be review applications in disguise, seeking to substitute the earlier decision of the Larger Bench, which is not permissible under the law.

7. Legal Principles Governing Rectification of Mistakes:
Summary: The Tribunal reiterated the legal principles governing rectification, emphasizing that a mistake must be apparent from the record and not require a detailed exercise to discover. The Tribunal cited several judicial precedents, including the decisions in T.S. Balaram v. Volkart Brothers and Hari Vishnu Kamath v. Syed Ahmad Ishaque, to illustrate that rectifiable mistakes must be obvious and not subject to debate or extensive reasoning.

Conclusion:
The Tribunal dismissed both Miscellaneous Applications (MA 487/2010 and 470/2010) filed by the interveners, M/s Alstom Project India Ltd. and M/s SEPCO Electric Power Construction Corporation, as misconceived and devoid of merit. The applications were found to be attempts to review the Larger Bench's decision under the guise of rectification, which is not permissible under the law. The Tribunal upheld the principles of judicial discipline and the limited scope of rectification, emphasizing that any aggrieved party should seek recourse through the appropriate appellate mechanisms provided by the statute.

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