2013 (4) TMI 183 - AT - Central Excise

Rectification of mistake u/s 35C(2) of the Central Excise Act - appellant has contended that the order of the Tribunal which has dispelled the view of Department and held that launching trusses are classifiable under heading 7308 and not under 8425 requires rectification as it suffers from error apparent on the face of record It is contended that once the classification mentioned in the show cause notice was rejected, the Tribunal ought to have accepted the appeal and dropped the demand instead of remanding the matter for fresh adjudication. Held that After interpretation of section 35C and other relevant facts tribunal do not find any error apparent on the face of the record which may call for indulgence of the Tribunal under Section 35C(2) of the Central Excise Act, 1944. This application is nothing but abuse of process of law and it appears to have been moved with mala fide intention to delay the proceedings. Accordingly, the application is dismissed with cost of Rs. 1 Lakh to be deposited with the concerned Commissioner within a month.

Issues involved:
Rectification of mistake in Final Order under Section 35C(2) of the Central Excise Act, 1944; Scope of Tribunal's power to recall its order; Error apparent on the face of the record justifying rectification.

Analysis:

1. Rectification of Mistake in Final Order:
The petitioner sought rectification of a mistake in the Final Order No. A/751-752/2012-EX(BR) under Section 35C(2) of the Central Excise Act, 1944. The issue revolved around the eligibility of launching trusses for exemption under Notification No. 3/2005-C.E., dated 24-2-2005. The appellant contended that the Tribunal should have dropped the demand instead of remanding the matter for fresh adjudication after rejecting the classification proposed by the department.

2. Scope of Tribunal's Power to Recall its Order:
The Tribunal's power to recall its order under Section 35C(2) of the Central Excise Act was analyzed in light of legal precedents. The Supreme Court's decision in CCE, Calcutta v. A.S.C.U. Ltd. highlighted the limited scope of correction permissible by the Tribunal. The judgment emphasized that an error apparent on the face of the record should be manifest and self-evident, not requiring extensive discussion or extraneous matter to establish its incorrectness.

3. Error Apparent on the Face of the Record:
The Tribunal assessed whether there was an error apparent on the face of the record justifying rectification of the Final Order. It was noted that the appellant had consistently contested the show cause notice's classification of launching trusses under heading 8425, successfully arguing for classification under heading 7308. The Tribunal found no prejudice to the appellant's defense in remanding the matter for fresh adjudication. The plea regarding the marketability and excisability of launching trusses was deemed adequately addressed in the Tribunal's order.

4. Conclusion:
After thorough analysis, the Tribunal concluded that there was no error apparent on the face of the record warranting rectification of the Final Order. The application for rectification was dismissed, with the Tribunal noting it as an abuse of process of law and potentially moved with mala fide intention to delay proceedings. The appellant was directed to deposit a cost of Rs. 1 Lakh with the concerned Commissioner within a month.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision regarding the rectification of the Final Order under the Central Excise Act, 1944.

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