2013 (11) TMI 1029 - AT - Central Excise

Rectification of error Restoration of appeal Held that - CCE BELAPUR, MUMBAI Vs RDC Concrete (India) P. Ltd. 2011 (8) TMI 25 - SUPREME COURT OF INDIA - a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning - The Commissioner (Appeals) dismissed the appeal filed by the applicant without going into the merit, on the ground that the appeals were filed beyond the time limit prescribed under Section 35(1) of the Central Excise Act, 1944 the Tribunal had given a detailed finding about the conduct of the appellant in the final order - the applicability of Section 14 of the Limitation Act would depend on the examination of the entire facts on record of the case and such re-appreciation of facts are not permissible in the present application. It is seen that no appeal or revision was pending before any court, even before the Tribunal During the intervening period, no appeal/writ petition was pending before the High Court/Tribunal the relief under Section 14 of the Act, 1963 depends upon bonafide and with due diligence pursuing the remedy before a court without jurisdiction - It would be decided after considering the fact and law of the case by a long process of reasoning, which is not permissible under ROM application there was no reason for modification of order Decided against Assessee.

Summary

Issues Involved:
1. Rectification of Mistake in Final Order.
2. Compliance with Tribunal's Remand Order.
3. Limitation Period for Filing Appeals.
4. Applicability of Section 14(2) of the Limitation Act, 1963.
5. Supply of Documents by Adjudicating Authority.
6. Re-appreciation of Facts in ROM Application.

Issue-wise Detailed Analysis:

1. Rectification of Mistake in Final Order:
The applicant filed applications for rectification of mistakes in Final Order No.40078-40080/2013 dated 27.2.2013. The Tribunal examined whether there was an apparent error in the final order that warranted rectification. The Tribunal reiterated that a mistake apparent on record must be an obvious and patent mistake, not one that requires a long process of reasoning, as established by the Hon'ble Supreme Court in the case of CCE BELAPUR, MUMBAI Vs RDC Concrete (India) P. Ltd.- 2011 (270) ELT 625 (SC).

2. Compliance with Tribunal's Remand Order:
The applicant contended that the adjudicating authority did not comply with the Tribunal's remand order, as the relied upon documents were not supplied. However, the Tribunal found that the adjudicating authority had complied with the remand order and passed a de novo adjudication order. The Tribunal upheld the Commissioner (Appeals)'s decision, noting that the appeals were dismissed as time-barred and did not delve into the merits of the case.

3. Limitation Period for Filing Appeals:
The Tribunal emphasized that the Commissioner (Appeals) has no power to condone the delay in filing appeals beyond the period prescribed under Section 35(1) of the Central Excise Act, 1944. The appeals were filed beyond the stipulated period, and thus, the Tribunal found no infirmity in the order of the Commissioner (Appeals) dismissing the appeals as time-barred.

4. Applicability of Section 14(2) of the Limitation Act, 1963:
The applicant argued that the period from 20.4.2009 to 29.12.2009 should be excluded while computing the limitation period before the Commissioner (Appeals) under Section 14(2) of the Limitation Act, 1963. The Tribunal noted that Section 14(1) applies to proceedings pending in a court of first instance or of appeal or revision, and in this case, no such appeal or revision was pending. The Tribunal concluded that the re-appreciation of facts to determine the applicability of Section 14 was not permissible in the ROM application.

5. Supply of Documents by Adjudicating Authority:
The applicant contended that the adjudicating authority did not supply the relied upon documents, contrary to the Tribunal's findings in the final order. The Tribunal reviewed the records and found that the adjudicating authority had indeed supplied the documents, as recorded in the final order. Thus, the Tribunal dismissed the applicant's submission on this issue.

6. Re-appreciation of Facts in ROM Application:
The Tribunal held that the ROM application cannot be used for re-appreciation of facts or to correct an erroneous view of law. The Tribunal cited the Hon'ble Supreme Court's decision in the case of T.S. Balram v. M/s. Volkart Brothers, emphasizing that a mistake apparent on record must be patent and obvious, not one that requires a detailed reasoning process.

Conclusion:
The Tribunal dismissed the applications for rectification of mistakes, finding no reason to modify the final order dated 27.2.2013. The Tribunal upheld the Commissioner (Appeals)'s decision dismissing the appeals as time-barred and concluded that the issues raised by the applicant did not warrant rectification under the scope of a ROM application.