2013 (12) TMI 146 - AT - Service Tax

Rectification of mistake - Restoration of appeal - Respondent contends that application is not maintainable as it seeks to rectify an alleged mistake in a Miscellaneous Order passed - Rectification in miscellaneous order or final order - Held that - The present application, undisputedly, seeks rectification of what is said to be an apparent mistake in a Miscellaneous Order passed by this Bench earlier. The application is not maintainable - Following decision of CCE, Mumbai v. Pleasantime Products 2009 (2) TMI 545 - CESTAT, MUMBAI - Rectification denied.

Summary

Issues:
Rectification of apparent error in a Miscellaneous Order passed by the Tribunal.

Analysis:
The case involved an application filed by the department seeking rectification of an alleged error in a Miscellaneous Order passed by the Tribunal. The department had previously filed four ROM applications for rectification of Final Order Nos. 761-764/2010, seeking restoration of all four appeals for fresh hearing. However, only two appeals were restored, leading to the present application for rectification of the other two appeals (ST/163/2007 and ST/362/2008). The department argued for rectification of the alleged error in the Miscellaneous Order dated 8-11-2010 to restore the remaining appeals.

The respondent's consultant contended that the department's miscellaneous application was not maintainable as it attempted to rectify a mistake in a Miscellaneous Order, which was beyond the scope of Section 35C(2) of the Central Excise Act. The consultant relied on the case law CCE, Mumbai v. Pleasantime Products - 2009 (241) E.L.T. 459 (Tri.-Mumbai) to support the argument that only mistakes in Final Orders of the Tribunal could be rectified under the said provision, and not in Miscellaneous Orders.

Upon considering the submissions, the Tribunal found merit in the objection raised by the respondent's consultant and supported by the cited case law. It was observed that the present application sought rectification of an alleged mistake in a Miscellaneous Order, which was not permissible under Section 35C(2) of the Central Excise Act. Consequently, the Tribunal held that the application was not maintainable and dismissed it, thereby upholding the respondent's contention and denying the department's request for rectification of the Miscellaneous Order dated 8-11-2010.

The judgment was pronounced and dictated in open court, with the Tribunal's decision to dismiss the department's application for rectification of the alleged error in the Miscellaneous Order being the final outcome of the case.