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2011 (7) TMI 991 - AT - Service TaxApplication for rectification of mistakes - Turnkey Projects - Composite Contracts - original order in CCE, RAIPUR Versus M/s BSBK PVT LTD (2010 -TMI - 76005 - CESTAT, NEW DELHI - LB) - writ petition against this order was dismissed by the HC in LARSEN AND TOUBRO LTD. Versus CESTAT (2010 -TMI - 76005 - CESTAT, NEW DELHI - LB) filed by another intervener - It was noticed that present two applications (interveners) calls for reconsideration of whole case for substituting earlier decision of Larger Bench in reference by a new decision, that is impracticable since order of the Larger Bench was not interfered by Hon ble High Court due to dismissal of Writ Petition of Larsen and Toubro - An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions - Arguments on behalf of interveners show that detailed exercise is essential to appreciate the facts and circumstances of the case. Such exercise is permissible only if an appeal is decided or power of review is exercisable which is not conferred on the Tribunal. It is, no doubt, true that a mistake capable of being rectified is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa (1965 -TMI - 100065 - 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. 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 - Application is dismissed
Issues Involved
1. Dismissal of MA (ROM) No. 29/2010 for non-prosecution. 2. Rectification of mistake in the Larger Bench Order dated 6-5-2010. 3. Jurisdiction and authority of the Larger Bench. 4. Applicability of the 46th Constitutional Amendment. 5. Errors in the Larger Bench decision and their rectification. 6. Locus standi of the interveners to challenge the Larger Bench decision. 7. Legal principles governing the rectification of mistakes. Detailed Analysis 1. Dismissal of MA (ROM) No. 29/2010 for Non-Prosecution The Tribunal dismissed MA (ROM) No. 29/2010 separately for non-prosecution. This procedural dismissal indicates that the application was not pursued by the applicant, leading to its rejection without substantive consideration. 2. Rectification of Mistake in the Larger Bench Order Dated 6-5-2010 The interveners, M/s. Alstom Project India Ltd. and M/s. SEPCO Electric Power Construction Corporation, filed Misc. Applications No. 487/2010 and 470/2010, respectively, seeking rectification of mistakes in the Larger Bench Order dated 6-5-2010. They argued that the Larger Bench had wrongly noted submissions, ignored vital submissions, and binding precedents, resulting in apparent errors. 3. Jurisdiction and Authority of the Larger Bench The Tribunal clarified that the Larger Bench operates in an advisory and consultative capacity rather than appellate, review, or revisionary jurisdiction. The President of the Tribunal, under Section 129C(5) of the Customs Act, 1962, refers matters to the Larger Bench to resolve conflicts in decisions of different Benches. The Larger Bench does not have the power to decide appeals in entirety but only to address specific questions referred to it. 4. Applicability of the 46th Constitutional Amendment The interveners contended that the Larger Bench misinterpreted the 46th Constitutional Amendment, particularly in relation to the indivisibility of composite works contracts. They argued that the Tribunal erroneously omitted paragraph 43 of the Supreme Court's judgment in Bharat Sanchar Nigam Limited v. UOI, which held that the principles of indivisibility of composite works contracts survived the 46th Constitutional Amendment for purposes other than sales tax. 5. Errors in the Larger Bench Decision and Their Rectification The interveners claimed that the Larger Bench made several errors, including: - Misquoting submissions and precedents. - Misapplying the decision in P.C. Puri v. CIT, Delhi-2. - Erroneously citing paragraph 45 instead of paragraph 43 from the BSNL judgment. - Failing to discuss relevant judgments mentioned in paragraph 3.5 of the Larger Bench Order. The Tribunal, however, held that these alleged errors required detailed examination and were not apparent mistakes that could be rectified under the powers conferred by law. 6. Locus Standi of the Interveners to Challenge the Larger Bench Decision The Tribunal noted that one of the interveners, M/s. Larsen & Toubro Ltd., had already unsuccessfully challenged the Larger Bench decision before the Hon'ble High Court of Delhi. The High Court held that if an intervener is affected by an order, they should file an appeal before a superior forum as provided in the statute. The Tribunal emphasized that the present applications by the other two interveners were similarly misconceived and not maintainable, as they sought to repetitively litigate on the same order. 7. Legal Principles Governing the Rectification of Mistakes The Tribunal reiterated that rectification of mistakes must be apparent from the record and not require detailed examination or arguments. Citing various Supreme Court judgments, the Tribunal explained that an error apparent on the face of the record must be manifest and self-evident. The Tribunal concluded that the interveners' applications were essentially disguised review applications, which are not permissible under the law. The Tribunal emphasized that rectifiable mistakes must be obvious and not debatable points of law or fact. Conclusion The Tribunal dismissed both Misc. Applications No. 487/2010 and 470/2010, filed by M/s. Alstom Project India Ltd. and M/s. SEPCO Electric Power Construction Corporation, respectively. The applications were deemed misconceived and devoid of merit, as they sought to review the Larger Bench decision under the guise of rectification, which is not permissible under the law. The Tribunal upheld the principles governing the rectification of mistakes, emphasizing that such mistakes must be apparent from the record and not require detailed examination or arguments.
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